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Stories from SlateCongress Shouldn’t Give the President New Power to Fight Terroristshttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/congress_shouldn_t_give_president_obama_new_power_to_fight_terrorists.html
<p>Though no one much noticed amid the <a href="http://www.slate.com/articles/news_and_politics/war_stories/2013/03/john_brennan_wants_the_pentagon_to_take_command_of_the_cia_s_drone_strike.html">debate over whether the CIA or the Pentagon should be in charge of drone strikes</a>, last week the Senate Foreign Relations Committee heard testimony on the need for a new and improved law authorizing the president to use lethal force against a new and changeable set of terrorist groups. This week, Republican Sen. Bob Corker of Tennessee announced <a href="http://www.corker.senate.gov/public/index.cfm/news?ID=2be33f18-0fb4-4cd6-91c8-f792515aa055">plans to introduce legislation</a> that does just that. The idea is that now the war against al-Qaida is nearly won, it may be time to declare war anew, this time against one or more of a score of emerging radical Islamist groups who were “inspired” by some part of al-Qaida’s message.</p>
<p>It is not clear exactly which new threat or threats are driving the call for new authority to use military force. In his testimony, former National Counterterrorism Center director Michael Leiter embraced the growing consensus that the al-Qaida that attacked us on 9/11 is, in his words, “a shadow of its former self.” He likewise warned against overreaction to the attack on the U.S. consulate in Benghazi or the threat to the United States posed by al-Qaida in the Islamic Magreb (AQIM), a group far “less tactically proficient and more regionally focused” than the al-Qaida of 9/11. More troubling in his estimate is Jabhat al-Nusra, a militant Syrian group now a magnet for radical Islamists to join the already bloody conflict in that country. Yet Leiter stopped short of calling for the United States to use force against al-Nusra and floated the idea of stepping up aid in the region but not drone strikes against al-Nusra targets in Syria or Iraq. In the meantime, echoing the views of former Defense Department general counsel Jeh Johnson, Leiter indicated that the existing authorization to use force against al-Qaida and its associates—passed by Congress in 2001 and still on the books today—allowed for every use of counterterrorism force that was required during his tenure in government.</p>
<p>Despite this, Leiter and others seem convinced that Congress should pass a new law authorizing force. Strangely, these calls for Congress to delegate new power to the executive branch seem animated less by an articulated security strategy or identified target than by a sense that this will actually help <em>constrain</em> the use of presidential power. As the argument goes, the president—any president—will want the option at some point of using force against some terrorist group. If Congress legislates, it can establish limits on the scope of the president’s authority by setting the rules for him to exercise it.</p>
<p>The search for meaningful constraints on power is indeed the central challenge of our constitutional system. But Congress has an abysmal track record of successfully reining in presidential uses of force overseas. And there is little cause for hope it will succeed here. Consider the recent history. Congress decided in the days after 9/11 to authorize the use of force against a limited set of targets responsible for the attacks of 9/11, and two presidents have now used that authority to its fullest. But such broad congressional authority has not stopped President Obama, just like his predecessors, from asserting that he retains inherent authority to use force in self-defense under Article II of the Constitution, above and beyond what Congress authorizes. Congress can authorize whatever new wars it wishes; the president can still use force against imminent threats without it.</p>
<p>This is hardly to say the president’s decision to use force operates under no constraint at all. Using force is expensive, it is alienating, it is provocative, and it may create greater threats to the American people than it prevents. Presidents have to convince the American public that war is worth fighting. This has even been true when they respond to acts of terror in self-defense. When President Reagan ordered strikes against Libya following the bombing of the civilian airliner over Lockerbie, Scotland, he made a speech from the Oval Office. Ditto for President Clinton when he bombed Sudan in response to al-Qaida’s attacks on the U.S. Embassies in Kenya and Tanzania. Mission details were rightly few, but both presidents explained who we had targeted and why. And the public, if they were displeased, could hold accountable the president or his party.</p>
<p>Today, it is this lack of transparency—not Congress’ relative apathy—that has boosted executive power and threatened the legitimacy of current drone operations. If Congress wants to do something about this, it should start by beefing up its own oversight efforts. Current federal laws require the president to notify the intelligence committees of all covert actions carried out by CIA (after the fact if need be). Congress should also require the same degree of notification of the Senate and House Armed Services Committees for operations carried out by the military’s Joint Special Operations Command, an active participant in U.S. targeting operations. The much maligned War Powers Resolution has been modestly effective in requiring the White House to report the introduction of military forces into hostilities. In the age of drones, Congress should explore strengthening that reporting requirement further.</p>
<p>If a terrorist group poses a threat to the United States that is truly imminent, the president of course retains his power to respond with force in self-defense. If and when a new terrorist group emerges that poses the kind of profound threat to the American people al-Qaida posed in the years leading up to 9/11, the president should seek authorization from Congress to use force against that group. New authority to use force is unlikely to diminish the president’s power. Neither does it ensure the public will be told who the United States attacks or why. Absent either, the case for new use-of-force legislation is impossibly thin.</p>Tue, 26 Mar 2013 22:20:04 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/congress_shouldn_t_give_president_obama_new_power_to_fight_terrorists.htmlDeborah Pearlstein2013-03-26T22:20:04ZHe doesn’t need it.News and PoliticsCongress Shouldn’t Give the President New Power to Fight Terrorists100130326013al-qaidaterrorismobamaDeborah PearlsteinJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/congress_shouldn_t_give_president_obama_new_power_to_fight_terrorists.htmlfalsefalsefalseCongress Shouldn’t Give the President New Power to Fight TerroristsCongress Shouldn’t Give the President New Power to Fight TerroristsPhoto by Alex Wong/Getty ImagesSen. Bob Corker said he intends to introduce new legislation authorizing the president to use lethal force against a new and changeable set of terrorist groups.Targeted Killings Can Be Legalhttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/02/white_paper_on_drones_targeted_killings_can_be_legal_but_the_obama_administration.html
<p>If you’re trying to understand whether the administration’s targeted killing program is lawful, you’d have a tough time figuring it out from some of the legal language flying around this week. On the right, <a href="http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/02/leaked_drone_memo_obama_can_do_whatever_he_wants_to_fight_terrorism.html">Eric Posner tells us in <strong><em>Slate</em></strong></a> that the Justice Department’s leaked <a href="http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf">white paper</a> on drones confirms what he’s long argued, that the president has the power to do whatever he wants in the name of fighting terror.&nbsp;On the left, <a href="http://www.nytimes.com/2013/02/07/opinion/the-questions-brennan-cant-dodge.html">Mary Ellen O’Connell insists</a> that the white paper’s justifications are so manifestly false that there is little difference between the Obama DOJ justifying targeted killing, and the Bush DOJ justifying torture.</p>
<p>Neither has it right. While torture is never, under any circumstances, permitted by law, targeted killing sometimes can be. The question—and it’s a big one—is when.</p>
<p>The DOJ white paper doesn’t succeed in answering the question. Not because its arguments, such as they are, get the law plainly wrong. But because the paper’s authors never quite commit to saying what the law is.<br /> </p>
<p>To say when targeted killing is legal, the white paper would have to do two things. It would have to identify a source of authority in the U.S. Constitution, or in laws passed by Congress, that gives the president the power to use force. And it would have to identify and apply the U.S. and international laws that limit when such force can be used.</p>
<p>Start with the source of authority. The white paper says that the president has some power to use force as part of his “constitutional responsibility to defend the nation.” Indeed, the Supreme Court has recognized that Article II of the Constitution gives the President at least some authority to, as the framers put it, “repel sudden attacks,” without having to go to Congress first for permission—in other words, to play defense in the moment. It’s not hard to imagine an argument that the government targeted U.S. citizen Anwar al Awlaki in Yemen because of a discovery that he was about to launch a particular, sudden attack. But the paper doesn’t actually make that argument. It’s not just that al Awlaki goes unmentioned. So does Article II. And true enough, the administration has been at pains, in court challenges to its detention power at Guantanamo, to avoid resting its claim of authority on the president’s constitutional power alone—precisely because such claims of authority can be overly broad.&nbsp; </p>
<p>Perhaps another tack, then? There’s also the Authorization for Use of Military Force, passed by Congress in 2001, which gives the president the power to use “all necessary and appropriate force” against the organizations responsible for the 9/11 attacks. Since 2001, Presidents Bush and Obama, the Supreme Court, and Congress have all said this “necessary and appropriate force” includes the power to detain, even the power to detain American citizens picked up in Afghanistan. The same logic by which all three branches of government have agreed the law authorizes detention—because detention is a necessary incident of war—supports the argument that it authorizes lethal targeting as well.</p>
<p>But as the executive, Congress, and the courts have also recognized, the power granted by the AUMF only extends as far as what is allowed by the international laws of war. And there are a lot of those laws. For now, let’s just take one of them, and for the sake of argument, state it in a way that gives the administration the widest possible latitude for targeting. According to the relevant treaties, and the International Committee of the Red Cross (the world’s most recognized interpreter of the law of war), members of organized armed groups that do not represent states may be targeted in war either if they are directly participating in hostilities when they’re targeted, or if it was their “continuous function” to prepare for, command, or take part in acts that amount to direct participation in hostilities. Reports about al Awlaki’s role suggest he might fit squarely into the “continuous function” category of potential targets.<br /> &nbsp;<br /> And yet the white paper never discusses the concept of direct participation. It never talks about the treaty provisions, or the Red Cross guidance. More simply, it doesn’t identify a legal <em>rule</em> about who is targetable under the law of war. That leaves us to speculate about the reason for the omissions. Does the Obama administration think the “continuous function” standard isn’t the rule? Or is this indeed the rule DOJ lawyers had in mind, but they just didn’t want to adopt it in full (including the very next part of the Red Cross guidance, which says recruiters, trainers, financiers, and propagandists generally cannot be targets)?</p>
<p>The white paper avoids commitment this way throughout. International law says the use of force is sometimes justified in national self-defense, <em>if</em> an attack is imminent. But the paper never states this rule of self-defense: It just raises concepts of imminence in an otherwise unrelated discussion of the guarantee of due process of law in the Constitution.&nbsp;</p>
<p>Why should it matter so much, to say what the law is? In his testimony before the Senate on Thursday, John Brennan, the president’s choice to be the next CIA Director, explained this well. The Justice Department must “establish the legal boundaries within which we can operate,” he said.&nbsp;Brennan is right. Applying the law means drawing lines—in something other than invisible ink.</p>Fri, 08 Feb 2013 20:52:55 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/02/white_paper_on_drones_targeted_killings_can_be_legal_but_the_obama_administration.htmlDeborah Pearlstein2013-02-08T20:52:55ZBut the Obama administration’s white paper fails to explain why.News and PoliticsThe Obama Lawyers Haven’t Explained Why Targeted Killings Can Be Legal100130208013dronesDeborah PearlsteinJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/02/white_paper_on_drones_targeted_killings_can_be_legal_but_the_obama_administration.htmlfalsefalsefalseThe Obama Lawyers Haven’t Explained Why Targeted Killings Can Be LegalThe Obama Lawyers Haven’t Explained Why Targeted Killings Can Be LegalPhoto by Saul Loeb/AFP/Getty ImagesIn his testimony before the Senate, John Brennan explained that the Justice Department must “establish the legal boundaries within which we can operate&quot;A View of Scalia's Fantasy Lifehttp://www.slate.com/blogs/convictions/2008/06/25/a_view_of_scalia_s_fantasy_life.html
<p> Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/24/judges-on-tanks.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/24/judges-on-tanks.aspx"> Eric's last post </a> .&nbsp;As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying. </p>
<p> But as I am generally a fan of the idea of agency expertise, let me pick up on that point.&nbsp;In the administrative-law context, it might not be too overly broad to say that courts &quot;defer&quot; to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) <i> process </i> consistent with the Constitution and laws. For reasons the <i> Boumediene </i> decision describes, an agency process like the CSRTs wasn't worthy of any kind of deference.&nbsp;This case was made perhaps most powerfully by all of the <i> military experts </i> who told the court, the press, and anyone else they could find that the process should not be trusted. </p>
<p> The far more disturbing part of Eric's post, though, is this: &quot;[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance.&quot;&nbsp;This isn't a statement about the relative competence of different institutions. It's a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can't be described, defined, or constrained by the rule of law.&nbsp;If that's a fair account of the point, Eric, we'll just have to agree to disagree. </p>Wed, 25 Jun 2008 14:34:00 GMThttp://www.slate.com/blogs/convictions/2008/06/25/a_view_of_scalia_s_fantasy_life.htmlDeborah Pearlstein2008-06-25T14:34:00ZNews and PoliticsA View of Scalia's Fantasy Life209080625002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/25/a-view-of-scalia-s-fantasy-life.aspxfalsefalsefalseA View of Scalia's Fantasy LifeA View of Scalia's Fantasy LifeTerrorist IDhttp://www.slate.com/blogs/convictions/2008/06/24/terrorist_id.html
<p> Orin, thanks. Your <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/23/can-judges-identify-terorrists.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/23/can-judges-identify-terorrists.aspx"> latest post </a> helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more. </p>
<p> Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you describe as &quot;likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified.&quot; Let's take this in two steps. First, the &quot;classified&quot; part isn't obviously a problem for judges.&nbsp;Especially since 9/11 but well before that as well, judges have reviewed classified evidence regularly to determine whether it was properly classified and how (under the <a title="http://www.fas.org/irp/offdocs/laws/pl096456.htm " href="http://www.fas.org/irp/offdocs/laws/pl096456.htm"> federal law </a> passed in 1980 for just this purpose) it should be properly redacted or otherwise addressed for trial. Dealing with classified information can be tricky, but judges have nearly 30 years worth of experience doing just that. </p>
<p> As for the nature of the evidence itself, I don't know anyone — military or civilian — who knows exactly what to do with 6-year-old, four-witness-removed hearsay. (That's why the Army regulations in place in 2001, promulgated under those pesky Geneva Conventions, provided for administrative hearings that would be held on the battlefield as close to the actual events and witnesses as possible.&nbsp;Woulda coulda shoulda for Gitmo, I guess.) So I can see that given where we are now, there'll have to be some tough calls about whether and to what extent folks' recollections are to be credited.&nbsp;But the claim that deciding how to handle hearsay evidence of dubious reliability is <i> unfamiliar </i> to Article III judges? Guess we must have had different profs for criminal procedure. </p>Tue, 24 Jun 2008 16:11:00 GMThttp://www.slate.com/blogs/convictions/2008/06/24/terrorist_id.htmlDeborah Pearlstein2008-06-24T16:11:00ZNews and PoliticsTerrorist ID209080624002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/24/terrorist-id.aspxfalsefalsefalseTerrorist IDTerrorist IDScalia on the Battlefieldhttp://www.slate.com/blogs/convictions/2008/06/23/scalia_on_the_battlefield.html
<p> As I wrote a few weeks back, there are some pretty </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/boumediene-three-days-out.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/boumediene-three-days-out.aspx"> serious factual flaws </a>
<p> in Justice Scalia's </p>
<i> Boumediene </i>
<p> rant. Is the 30 men &quot;returned to the battlefield&quot; one of them? </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/22/die-another-day.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/22/die-another-day.aspx"> Phil </a>
<p> says yes. </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/22/more-on-scalia-v-carter.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/22/more-on-scalia-v-carter.aspx"> Orin </a>
<p> says no. </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/22/more-on-scalia-v-carter.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/22/more-on-scalia-v-carter.aspx"> Eric </a>
<p> says everyone makes mistakes, but the military makes less than the rest of us (more on that below). </p>
<p> We may well never know about these particular 30. On the face of it, there are plenty of reasons not to take a Pentagon claim to the 30-detainees effect at face value.&nbsp;DoD hasn't exactly established an unblemished record of credibility on detention matters.&nbsp;And the data DoD have released leaves one wondering. For example, among the 30 DoD says it's counting are the five Uighurs who were released to Albania — these are the ethnic Muslim Chinese detainees who couldn't be sent back to China given the high likelihood they'd be tortured there and were instead taken in by the Albanians. As best one can discern, their only post-release &quot;offense&quot; to date seems to be having talked (from the comfort of their Albanian U.N. refugee facility) to Tim Golden at the <i> New York Times </i> about their time at Gitmo. Asymmetric warfare, I take it. One could go on.&nbsp;Or just read more about it in places like <a title="http://www.huffingtonpost.com/h-candace-gorman-/guantanamo-myth-no-2-ca_b_43970.html" href="http://www.huffingtonpost.com/h-candace-gorman-/guantanamo-myth-no-2-ca_b_43970.html"> here </a> or <a title="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089475http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089475 " href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089475http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089475"> here </a> . In any case, as I thought the recent <i> McClatchy </i> <a title="http://www.mcclatchydc.com/detainees/story/38779.html" href="http://www.mcclatchydc.com/detainees/story/38779.html"> study </a> of released Gitmo detainees&nbsp;helped show, Eric, it does looks like at least some of the folks who left Gitmo and then worked against the United States were indeed radicalized there — so they weren't particularly going &quot;back&quot; to the &quot;battlefield;&quot; they were joining it for the first time.&nbsp; </p>
<p> Bigger picture, it seems to me Phil is right to point out that the military is the one who made the decision to let these particular guys out — presumably demonstrating that the existing detainee status-review process is not only rights-abusing but error-prone in every direction (keeping those who should be released, releasing those who perhaps should be still detained).&nbsp;On the other hand, is it possible that some former Gitmo detainees were let go and then did bad things? Yes. All the more reason to figure out how/whether we can do Gitmo better.&nbsp; </p>
<p> So who better to do it? Here's where Orin and Eric lose me.&nbsp;Why assume, as Orin puts it, that because &quot;[j]udges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't,&quot; judges are likely to do a worse job in making these status determinations than the military? I admit, that seems awfully counterintuitive to me. For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable. </p>
<p> On the military side, there's some parallel experience to be found in the often very good military justice system and, to an extent, in the services' criminal investigative divisions, although of course we all know the military has engaged neither at Gitmo (either with respect to status hearings or to trial).&nbsp;Indeed, often in the institutional military equivalent of a status hearing — administrative, investigative-type proceedings in wartime — the first-order &quot;judges&quot; are just whomever the relevant field commander appoints (experience or indeed any relevant training not necessarily required, as I understand it).&nbsp;With respect to &quot;mere&quot; detainee status determinations in particular, the last time before 9/11 the U.S. military was involved in any major detention operation was the 1991 Iraq war — long enough ago for plenty of those folks with any actual hands-on experience in such ops to have left the service. And for those who remain, the 1991 cases turned out not to offer particularly relevant experience anyway, as it was made clear to the military they should <i> not </i> follow the same procedures this time around as it did then.&nbsp; </p>
<p> The military houses plenty of smart people, of course, but is it an institution obviously better suited to deciding who's a terrorist and who's not?&nbsp;Eric says the reason it is has to do with comparative incentives: a military &quot;judge&quot; has a more immediate interest in getting the judgment right than a civilian judge.&nbsp;I dunno. Eric's point a) is speculative (most judges I know aren't crazy about terrorists either), b) assumes the military decisions aren't complicated by political guidance that skews their decision-making (not our recent experience), c) also wrongly assumes the military isn't thwarted by other federal government agencies with other incentives (like the CIA's apparent refusal to share evidence with the CSRTs), and d) assumes that these folks with the best interests at heart have the training and resources they need to make an informed decision (hasn't looked that way either).&nbsp;One could go on here, too. </p>
<p> In the meantime, I'm left with an impression: The courts have done pretty well with who's-who judgments and with far less of the devastatingly adverse strategic security consequences than our current Gitmo approach.&nbsp;And they have the power, at least in theory, by constitutional structure, judicial order, and institutional competence, to escape failings b), c), and d). So lemme try again: What is it in particular about Gitmo that courts can't handle? </p>Mon, 23 Jun 2008 19:45:00 GMThttp://www.slate.com/blogs/convictions/2008/06/23/scalia_on_the_battlefield.htmlDeborah Pearlstein2008-06-23T19:45:00ZNews and PoliticsScalia on the Battlefield209080623002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/23/scalia-on-the-battlefield.aspxfalsefalsefalseScalia on the BattlefieldScalia on the BattlefieldAnd Elsewhere on Capitol Hillhttp://www.slate.com/blogs/convictions/2008/06/17/and_elsewhere_on_capitol_hill.html
<p> For what it's worth, Bill Kristol was on <em> Fox News Sunday </em> claiming that &quot;very soon,&quot; Sens. McCain and Graham would introduce national security court legislation in the wake of <i> Boumediene </i> .&nbsp;Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a <a title="http://thinkprogress.org/2008/06/15/kristol-court-guantanamo/" href="http://thinkprogress.org/2008/06/15/kristol-court-guantanamo/"> partial transcript and video </a> .&nbsp;Here's the key passage. </p>
<blockquote>
<p> KRISTOL: [Habeas for detainees] is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials.&nbsp; And this has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind sheik in New York and has a very good book out on the problems of trying to do this through the federal legal system. ... </p>
<p> Senator Lindsey Graham is working on this.&nbsp; And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, 'I don't believe this soldier here who said this guy was doing this,' you have to release someone,' or, 'Let's build up—let's compromise sources and methods with a bunch of trials. I mean, it's ridiculous. </p>
<p> So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision. </p>
</blockquote>Tue, 17 Jun 2008 20:09:00 GMThttp://www.slate.com/blogs/convictions/2008/06/17/and_elsewhere_on_capitol_hill.htmlDeborah Pearlstein2008-06-17T20:09:00ZNews and PoliticsAnd Elsewhere on Capitol Hill209080617004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/17/and-elsewhere-on-capitol-hill.aspxfalsefalsefalseAnd Elsewhere on Capitol HillAnd Elsewhere on Capitol HillNext Up at the Courthttp://www.slate.com/blogs/convictions/2008/06/16/next_up_at_the_court.html
<p> The court just granted cert in a case in which plaintiff—a detainee who had been held here in the United States in pretrial detention shortly after the 9/11 attacks—is seeking damages against former Attorney General John Ashcroft and FBI Director Robert Mueller (among others) based on claims that his treatment in detention violated his constitutional rights.&nbsp;The government's petition for review in </p>
<i> Ashcroft </i>
<p> v. </p>
<i> Iqbal </i>
<p> is </p>
<a title="http://www.usdoj.gov/osg/briefs/2007/2pet/7pet/2007-1015.pet.aa.pdf" href="http://www.usdoj.gov/osg/briefs/2007/2pet/7pet/2007-1015.pet.aa.pdf"> here </a>
<p> . </p>
<p> Guess Justice Kennedy wasn't kidding when <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/good-day-in-gitmo-bad-day-in-iraq.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/good-day-in-gitmo-bad-day-in-iraq.aspx"> he suggested </a> in <i> Boumediene </i> a few days ago that the court might have to get more engaged in deciding &quot;war on terror&quot;-related cases. </p>
<p> Mr. Iqbal alleged that he was beaten and denied medical care, deprived of food (losing 40 pounds during his detention), subjected to extreme hot and cold temperatures, left in solitary confinement, often shackled, repeatedly subjected to strip and body-cavity searches, and subjected to racial ethnic and religious discrimination of various kinds.&nbsp;The 2nd Circuit rejected the defendants' motion to dismiss the case, and the Justice Department sought review. </p>
<p> On its face, the grant of cert doesn't look good for Mr. Iqbal (who has since been deported to his native Pakistan). It takes only four to grant cert, and I'm going out on a limb in guessing that Scalia, Thomas, Alito, and Roberts aren't huge fans of the <i> Bivens </i> doctrine (affording individuals a right to sue government officials who violate the Constitution).&nbsp;Then there's the conventional wisdom that the court doesn't grant cert to affirm. The 2nd Circuit allowed the case to go forward to permit limited discovery in the case, including the possible deposition of Mssrs. Ashcroft and Mueller on post-9/11 decisions about detainee treatment. If the court had no problem with that outcome, it could easily have waited until the case reached the merits before weighing in.&nbsp;But a lot of the justices have expressed concern about the burden of such discovery on government officials. </p>
<p> Apart from wondering where Justice Kennedy sits on these issues, it seems like a key question is whether the court will stick with its own precedent and recognize that it has to address the substantive validity of Mr. Iqbal's constitutional claims—were his Fifth Amendment rights violated?—before determining whether those rights were &quot;clearly established&quot; enough for a reasonable officer to have known better.&nbsp;(If the law wasn't clear enough for officials to have known better, the officials can invoke &quot;qualified immunity&quot; and stop the suit in its tracks.)&nbsp;Whatever the court decides about the qualified immunity defense, a holding by the Supreme Court on the merits that the Constitution bars this kind of treatment of detainees would be huge (and welcome) news. </p>
<p> And under it all there'll be the great question of whether Justice Scalia should recuse himself from consideration.&nbsp;He did, after all, just recently <a title="http://news.bbc.co.uk/2/hi/americas/7239748.stm" href="http://news.bbc.co.uk/2/hi/americas/7239748.stm"> announce </a> to the international press that he didn't particularly think torture amounted to punishment prohibited by the Eighth Amendment and that the constitutionality of detainee abuse depended on the circumstances (like, say, the days just after 9/11?).&nbsp;Here's betting there's a motion for recusal—and that Scalia stays in. </p>Mon, 16 Jun 2008 16:02:00 GMThttp://www.slate.com/blogs/convictions/2008/06/16/next_up_at_the_court.htmlDeborah Pearlstein2008-06-16T16:02:00ZNews and PoliticsNext Up at the Court209080616001Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/16/next-up-at-the-court.aspxfalsefalsefalseNext Up at the CourtNext Up at the CourtIt's Sept. 12, 2001—What Kind of Detention Power Do We Want Now?http://www.slate.com/blogs/convictions/2008/06/15/it_s_september_12_2001_what_kind_of_detention_power_do_we_want_now.html
<p> Picking up where my <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/15/getting-the-truck-out-of-the-ditch.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/15/getting-the-truck-out-of-the-ditch.aspx"> last post </a> left off. ... The policy goal is clear: The U.S. government need a detention scheme that protects as many innocent Americans as possible from becoming victims of terrorist attacks. </p>
<p> It seems to me there are at least four kinds of people we want to think about detaining. (By putting them in categories, I don't mean to suggest there's no overlap between them. I'm betting folks often fall into more than one category at once. I'm just trying to, as Ben would say, &quot;game out&quot; the possibilities. I'm keen to know what this first cut leaves out.) (1) Anyone who's been involved in an al-Qaida plot and anyone who's taken any steps to be involved in such a plot.&nbsp;(2) If we go to war in a country like, say, Afghanistan, we'll want to keep as many of &quot;them&quot; out of combat as possible so we can win and get our own folks home as quickly and as safely as possible.&nbsp;(3) There might be folks in New York or Iowa or Zimbabwe we want to pick up and question. They haven't done anything wrong. But they might know someone who has. (4) And there's Joe Schmo, who walks into a bar and says, &quot;Hi. I'm from al-Qaida. Can't wait to kill some of you innocent Americans.&quot;&nbsp;And then he sits down for a drink with some of his pals. </p>
<p> Can we detain these people? To me, there's little question that the power (and procedural requirements) for detaining (1) and (2) exist under current law domestic and international law (circa 2001 and more so today). Category (1) especially goes pretty far. All a would-be detainee has to do is offer anything that looks like &quot;material support&quot; to anyone thinking about a plot. And he doesn't even have to do it in the United States. These days, there are a host of federal criminal laws with broad extraterritorial scope (including a ban on terrorist training, broadly defined). And Category (2)—covered by the existing law of war and international human rights law (where the law of war leaves gaps)—addresses both &quot;international&quot; (in the sense of state-vs.-state) and &quot;noninternational&quot; (in the sense of nonstate-actor involvement) armed conflicts. Is the exact scope of these laws clear? No. But there's a pretty broad area of agreement about what they cover at a minimum. And it undoubtedly includes anyone we find in, say, Afghanistan after we invade. </p>
<p> Now it gets trickier. Can we detain someone purely for the purpose of asking them questions? Well, we can ask anything we want of anyone otherwise properly detained under the criminal law or the law of war (or immigration detention laws or civil commitment laws or material witness laws or pretrial detention laws). And especially if we don't alienate neighborhoods where we might find informants, we can talk to anyone who'll talk to us voluntarily.&nbsp;Beyond that, though, we'd need (at a minimum—since international law has unfavorable things to say about such detentions) a new law passed by Congress.&nbsp;And existing constitutional jurisprudence makes it clear any new &quot;interrogative detention&quot; regime would at a minimum have to come within some pretty strict procedural limits and even then is almost certain to be challenged in the courts. It would have to be time-limited (the state has a plausible interest in questioning folks, but there are enormous individual liberty interests that must be taken into account on the other side).&nbsp;For the same reasons, it would have to afford any detainee at a minimum speedy access to counsel and to review, some sort of hearing giving each side a chance to present evidence, and some kind of evidentiary burden on the government to show why there's any reason it should want to detain this particular individual. The scheme will have to apply equally to citizens and noncitizens (so we don't run afoul of equal protection). And of course, of course, we can't treat anyone cruelly. </p>
<p> So let's ask the FBI and CIA if, under these conditions, they think such a scheme would help.&nbsp;Based on my offline (and admittedly nonscientific and nonexhaustive) conversations with interrogators, I think they'd say that anyone who wants to talk with us will talk—and would've talked voluntarily without custody. And anyone who doesn't want to talk with us won't—and still won't after 48, 72, or 96 hours in custody. Especially without the threat of, say, prosecution and life imprisonment hanging over their heads.&nbsp;In the meantime, we'd better start working hard to develop a real human intelligence capacity—one that doesn't rely on custodial interrogation but rather on good old fashioned Arabic-speaking spycraft.&nbsp;That's my guess; I could be wrong about what's needed to be helpful. So I'd welcome further insight here. </p>
<p> And now the doozy—the al-Qaida who walks into a bar. Can we detain someone who says he's al-Qaida but hasn't apparently done anything about it? Circa Sept. 11, 2001, no. Anyone in this country at least has a First Amendment (among others) right to say anything.&nbsp;As long as they're not inciting imminent lawless action, not much to be done except (and this shouldn't be discounted) watch them (lawfully) like a hawk. And I don't believe the president's inherent authority extends so far as to entitle him, in the absence of an armed conflict, to swoop in anywhere in the world and detain anyone he wants. Circa today, there's the Authorization for the Use of Military Force passed by Congress. And as I pointed out in the last post, we're likely to find out via the Gitmo habeas proceedings whether the AUMF authorizes the detention of any old al-Qaida member. My suspicion is that some combination of the Constitution and international law forecloses a reading of the AUMF that would authorize the detention anytime, anywhere, of anyone who does no more (more or less) than say he's a member of al-Qaida. Marty may disagree. </p>
<p> But let's imagine the law already permits or could be revised so as to authorize the detention of self-described al-Qaida members.&nbsp;Would such a detention scheme—assuming a scheme with sterling procedural protections—help on balance to prevent more terrorist attacks? I find this question a very tough call.&nbsp; Here's why. So we've had this al-Qaida bar guy in &quot;preventive&quot; detention subject to periodic review for a period of years. He hasn't changed his tune; and we haven't found anything to charge him with. We've got two options: Release him or continue to detain. Releasing him might allow intelligence to track him and gain otherwise unavailable information about any plot he might undertake. Detaining him, on the other hand, might prevent <i> him </i> from participating in any particular plot. But if security analyses of the nature of al-Qaida and associated threats are to be believed, the whole problem is that men like this grow on the proverbial trees. He is replaceable. Worse, if we detain too many such men, or detain the wrong men, or detain men under a system of effectively indefinite detention believed (therefore) to be illegitimate, we trade his particular incapacitation for the need to incapacitate many more. This approach to detention thus fails ultimately to prevent an attack, but it succeeds in enhancing terrorist recruiting efforts overall. I need a fair bit more persuasion before I'm convinced to go down this road. </p>Sun, 15 Jun 2008 22:51:00 GMThttp://www.slate.com/blogs/convictions/2008/06/15/it_s_september_12_2001_what_kind_of_detention_power_do_we_want_now.htmlDeborah Pearlstein2008-06-15T22:51:00ZNews and PoliticsIt's Sept. 12, 2001—What Kind of Detention Power Do We Want Now?209080615002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/15/it-s-september-12-2001-what-kind-of-detention-power-do-we-want-now.aspxfalsefalsefalseIt's Sept. 12, 2001—What Kind of Detention Power Do We Want Now?It's Sept. 12, 2001—What Kind of Detention Power Do We Want Now?Getting the Truck Out of the Ditchhttp://www.slate.com/blogs/convictions/2008/06/15/getting_the_truck_out_of_the_ditch.html
<p> Ben's very useful post throws the preventive-detention gauntlet right back at me—and that's fair enough. I'd suggested his approach conflates two separate problems: (1) getting the truck out of the detention ditch at Gitmo (its own unique mess), and (2) figuring out what kind of detention policy and laws the United States needs going forward to effectively address the terrorist threat (a threat I don't for a moment deny).&nbsp;Herewith, the first of two posts in response. This one proposes a getting-the-truck-out plan. The next will talk about trying to avoid the next mess. </p>
<p> I take our collective starting point at Gitmo to be a consensus that it's time to shut it down (given a host of ill effects I could detail, but I think we're all now onboard here). Best I can tell, at Gitmo today there are three broad categories of detainees whose situations needs resolution: folks who've done something wrong who should be tried; folks who the current administration has cleared for release but who have no place suitable to go (because, for example, they face torture in their home country or because their home country won't take them back); and folks who haven't demonstrably (or at all) done anything wrong but who we're understandably loathe to release because, for example, they've said, &quot;I'm a member of al-Qaida and I can't wait to get back to the jihad.&quot; </p>
<p> For folks needing trial, I've recommended either courts martial or federal prosecution. The current military commissions are hopelessly (and rightly) tarnished as illegitimate, and any effort to revise or fix them will (a) take even more time (in no one's interest) and (b) not likely succeed in overcoming legitimacy problems. Will courts martial and/or federal prosecution face special challenges in these cases, like protecting classified information? No doubt, but for reasons I've alluded to in previous posts like <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/09/so-that-s-what-a-blogginghead-is.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/09/so-that-s-what-a-blogginghead-is.aspx"> this one </a> &nbsp;or <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/boumediene-three-days-out.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/boumediene-three-days-out.aspx"> this one </a> , I think these existing institutions far more accustomed, better suited, and demonstrably able to handle such questions. Might there be acquittals at such trials? Yes. Might KSM be acquitted? Ben, I'll up the ante and buy you a steak (or high-priced vegetarian) dinner of your choice if he is. </p>
<p> The folks who should be free but haven't yet been released (the Yemenis, the Uighurs, etc.) pose fundamentally a diplomatic problem. The existing law is clear on our obligation not to return them to places they're likely to be tortured. So we and our allies must find a suitable alternative home. I do not wish to undersell the difficulty and complexity here by calling it a &quot;diplomatic&quot; problem. I also would not wish to let the administration and its advocates believe that our treatment of our allies (and the rest of the world) in the past seven years has not made the resolution of this task substantially more difficult than it would/should have been. Because of the latter point, I think it is reasonable to expect we might see some diplomatic movement in any next administration—particularly a next administration that is visibly taking a series of real, unilateral steps to restore our credibility on matters of the rule of law, our interest in and respect for international partnerships, and our recognition that we can't combat terrorism without the help of our friends. Some of our allies have been talking a good human rights game; come January 2009, it'll be time for them to pony up. At least that's where I'd start. And while everyone's chatting it through (speaking of concrete, unilateral steps), I'd take these folks (and the folks I'm about to discuss) out of Gitmo and house them in a high-security military prison in the continental United States. </p>
<p> And what about the toughest group: those who have said they despise us but haven't yet demonstrably done anything about it (or anything that was prosecutable at the time they were captured)? Ben is right to note that classification of information—and, I would add, chronic unreliability of information from Gitmo that has been released—makes it impossible to identify from the outside how large a group this is.&nbsp;But let's assume it is not a null set.&nbsp;Here's why past acts matter. Had we given these folks Article 5 hearings in the first instance under the law of war, and kept them in Afghanistan (for those among this set who were captured thereabouts), I believe we could have lawfully continued to hold them in Afghanistan with modest periodic review until the conclusion of that conflict (which, contrary to part of the International Committee of the Red Cross' position, I believe can be understood to continue as a matter of U.S. and international law). I'm not crazy about how much leeway for lengthy detention the law of war provides here, but that's my reading of the law, at least with respect to those caught up in the armed conflict in/with Afghanistan. </p>
<p> But we didn't do that. And we've also now made Gitmo an international clearinghouse for (at least a handful of) folks we've picked up all over the world, like the <em> Boumediene </em> petitioners themselves, who are at best only arguably involved in an armed conflict within the meaning of international law and at best only arguably covered (sorry, Marty) by Congress' own AUMF. And most of all, we now have a ruling of the U.S. Supreme Court saying the Constitution entitles these people to petition for a writ of habeas corpus. Unless the next administration comes in and, upon actually reviewing the evidence, concludes some of these people should simply be released or (lawfully) transferred elsewhere for continued detention (and to me there is every incentive for a new administration to look at these cases closely and as publicly as possible), habeas must go forward. The government will put forward its best evidence. The detainees, represented by counsel, will put forward theirs. And the courts will decide in each case as a matter of substantive law (right, Ben?) whether their particular detention was authorized under U.S. and/or international law. The courts are best suited to this, in my view, because there was applicable law on the books at the time these men were detained, Congress has had two (unsuccessful) shots at constitutionally clarifying it, and the courts, in keeping with their constitutional charge, are accustomed to saying what the law is every day. </p>
<p> It seems as likely as not that many of those who care most deeply about human rights will be disappointed in the ultimate outcome of at least some of these cases.&nbsp;The AUMF as defined by extant international humanitarian and human rights laws, and as limited by constitutional due process, leaves room for a fair bit of detention (as even the <a title="http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/review-858-p375?opendocument" href="http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/review-858-p375?opendocument"> ICRC </a> understands). But I'd bet something even more than a steak dinner that if we do all this, we'll be (rightly) taking a lot less flack from the international community. We'll hang onto those who are really and truly dangerous (and might even have time to think about whether a little more investigation might help build a criminal case against them). And we'll have a clearer path to designing a vastly more sensible plan going forward. </p>
<p> So that's where I'm at today. But as ever, I'd be pleased to be learn more. </p>Sun, 15 Jun 2008 18:26:00 GMThttp://www.slate.com/blogs/convictions/2008/06/15/getting_the_truck_out_of_the_ditch.htmlDeborah Pearlstein2008-06-15T18:26:00ZNews and PoliticsGetting the Truck Out of the Ditch209080615004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/15/getting-the-truck-out-of-the-ditch.aspxfalsefalsefalseGetting the Truck Out of the DitchGetting the Truck Out of the DitchBoumediene Three Days Outhttp://www.slate.com/blogs/convictions/2008/06/14/boumediene_three_days_out.html
<p> First, thanks, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/13/blogging-from-acs-convention-re-boumediene.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/13/blogging-from-acs-convention-re-boumediene.aspx"> Dawn </a> , for those way too kind words about the detainees' panel at the <a title="http://www.acslaw.org/" href="http://www.acslaw.org/"> ACS Convention </a> . I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem &quot;anecdotes&quot; were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book. </p>
<p> Second, back to <i> Boumediene </i> , <a title="http://www.slate.com/id/2193468/ " href="http://www.slate.com/id/2193468/"> Dahlia </a> correctly points out that&nbsp;Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods.&nbsp;Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single <i> Washington Post </i> article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case. </p>
<p> As Human Rights First exposes in its must-read <a title="http://www.humanrightsfirst.org/us_law/prosecute/index.asp" href="http://www.humanrightsfirst.org/us_law/prosecute/index.asp"> report </a> on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost&nbsp;two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial.&nbsp;Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another.&nbsp;But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases. </p>
<p> Which brings me to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/another-reason-for-congress-to-legislate.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/another-reason-for-congress-to-legislate.aspx"> Ben </a> , <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/closer-to-consensus.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/closer-to-consensus.aspx"> Marty </a> , preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in &quot;Convictions&quot; that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's <a title="http://www.nytimes.com/2008/06/14/us/14assess.html?ref=us" href="http://www.nytimes.com/2008/06/14/us/14assess.html?ref=us"> NYT piece </a> saying conservatives now see <i> Boumediene </i> as a rallying cry. So stay tuned. </p>
<p> In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward — they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts — denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism <i> strategy </i> (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme. </p>Sat, 14 Jun 2008 19:25:00 GMThttp://www.slate.com/blogs/convictions/2008/06/14/boumediene_three_days_out.htmlDeborah Pearlstein2008-06-14T19:25:00ZNews and PoliticsBoumediene Three Days Out209080614004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/14/boumediene-three-days-out.aspxfalsefalsefalseBoumediene Three Days OutBoumediene Three Days OutWhat's Left of Judicial Deference?http://www.slate.com/blogs/convictions/2008/06/12/what_s_left_of_judicial_deference.html
<p> Though the opinion in </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/good-day-in-gitmo-bad-day-in-iraq.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/good-day-in-gitmo-bad-day-in-iraq.aspx"> <em> Munaf and Omar </em> </a>
<p> should give us all some pause, I'm still thinking that today's </p>
<i> Boumediene </i>
<p> opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security. </p>
<p> The majority opinion doesn't just embrace a functional approach to resolving questions of the scope of the Constitution's applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy's opinion gives executive claims of security necessity (that is, the executive's view of what's practical) at Guantanamo the back of his judicial hand. </p>
<p> What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee's apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ.&nbsp;What about the practical obstacle the administration's been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: &quot;The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims.&quot; Ouch. </p>
<p> <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/can-the-executive-avoid-the-impact-of-boumediene-by-moving-the-detainees-to-another-foreign-facility.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/can-the-executive-avoid-the-impact-of-boumediene-by-moving-the-detainees-to-another-foreign-facility.aspx"> Marty's </a> right that today's decision leaves open the critical next question of what about the habeas petitioners today held at the United States&nbsp;base in Bagram, Afghanistan.&nbsp;But that's a pretty strong shot across the bow of the executive branch all the same. </p>Thu, 12 Jun 2008 18:49:00 GMThttp://www.slate.com/blogs/convictions/2008/06/12/what_s_left_of_judicial_deference.htmlDeborah Pearlstein2008-06-12T18:49:00ZNews and PoliticsWhat's Left of Judicial Deference?209080612009Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/what-s-left-of-judicial-deference.aspxfalsefalsefalseWhat's Left of Judicial Deference?What's Left of Judicial Deference?Good Day in Gitmo, Bad Day in Iraqhttp://www.slate.com/blogs/convictions/2008/06/12/good_day_in_gitmo_bad_day_in_iraq.html
<p> While there's much, much more to be said on the Supreme Court's blockbuster decision today in <i> Boumediene </i> , the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee. </p>
<p> In a <i> unanimous </i> <a title="http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1666.pdf" href="http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1666.pdf"> decision </a> , the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), Munaf and Omar would lose on the merits of their habeas claims—and there's therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.&nbsp; </p>
<p> The&nbsp;detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution.&nbsp;The court concludes that this claim is &quot;of concern,&quot; but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination. </p>
<p> Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the &quot;extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway.&quot;&nbsp;But given the briefing the court had before it in this case, including <a title="http://brennan.3cdn.net/4fdf268da963ac00b0_ufm6b9po9.pdf " href="http://brennan.3cdn.net/4fdf268da963ac00b0_ufm6b9po9.pdf"> this amicus brief </a> detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have &quot;significant human rights problems,&quot; including &quot;torture and other cruel, inhuman, or degrading punishment&quot; and &quot;[a]busive interrogation practices&quot; including &quot;rape, torture and abuse, sometimes leading to death.&quot; </p>
<p> I'm not sure which is more remarkable about the decision—the fact that it was unanimous or the fact that the court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I'll say it was the decision to reach out and decide the merits—of a piece, one might note, with Justice Kennedy's paean to the role of the federal courts in such matters in <i> Boumediene </i> itself: &quot;Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.&quot; Read: We've been holding back. We're no longer so inclined. </p>Thu, 12 Jun 2008 16:22:00 GMThttp://www.slate.com/blogs/convictions/2008/06/12/good_day_in_gitmo_bad_day_in_iraq.htmlDeborah Pearlstein2008-06-12T16:22:00ZNews and PoliticsGood Day in Gitmo, Bad Day in Iraq209080612005Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/good-day-in-gitmo-bad-day-in-iraq.aspxfalsefalsefalseGood Day in Gitmo, Bad Day in IraqGood Day in Gitmo, Bad Day in IraqMilitary Commissions Act Is Unconstitutional Suspension of Writhttp://www.slate.com/blogs/convictions/2008/06/12/military_commissions_act_is_unconstitutional_suspension_of_writ.html
<p> The much-anticipated <i> <a title="http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf " href="http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf"> Boumediene </a> </i> decision by the Supreme Court is out—and on first, very quick read looks like a large victory for the Guantanamo detainees.&nbsp;Among other things, the court seems to conclude full habeas corpus hearings in the federal district court should proceed without delay. Here's one key excerpt (and more enlightened discussion no doubt to follow). </p>
<blockquote>
<p> The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. ... The cases before us, however, do not involve detainees who have been held for a short period of time. ... Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete [MCA] review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first [MCA] review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing. </p>
</blockquote>Thu, 12 Jun 2008 15:01:00 GMThttp://www.slate.com/blogs/convictions/2008/06/12/military_commissions_act_is_unconstitutional_suspension_of_writ.htmlDeborah Pearlstein2008-06-12T15:01:00ZNews and PoliticsMilitary Commissions Act Is Unconstitutional Suspension of Writ209080612003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/12/military-commissions-act-is-unconstitutional-suspension-of-writ.aspxfalsefalsefalseMilitary Commissions Act Is Unconstitutional Suspension of WritMilitary Commissions Act Is Unconstitutional Suspension of WritYe of Little Faithhttp://www.slate.com/blogs/convictions/2008/06/11/ye_of_little_faith.html
<p> Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion.&nbsp;You've nonetheless given a good, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/11/put-not-thy-faith-in-federal-court-trials.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/11/put-not-thy-faith-in-federal-court-trials.aspx"> thoughtful response, </a> so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society <a title="http://acslaw.org/pdf/ACS%20National%20Convention%20Schedule.pdf" href="http://acslaw.org/pdf/ACS%20National%20Convention%20Schedule.pdf"> fiesta </a> later this week). </p>
<p> On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some? </p>
<p> On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it.&nbsp; </p>
<p> More directly to your point, though, I do <em> not </em> argue that &quot;the criminal law [is] the sole source of authority to detain people in the war on terrorism.&quot; Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings <a title="http://www.prospect.org/cs/articles?article=rights_without_a_country" href="http://www.prospect.org/cs/articles?article=rights_without_a_country"> here </a> or <a title="http://www.humanrightsfirst.org/us_law/inthecourts/padilla_briefs/Supreme_Court/Amicus_in_Support_of_Padilla/Padilla_Amicus_Brief.pdf" href="http://www.humanrightsfirst.org/us_law/inthecourts/padilla_briefs/Supreme_Court/Amicus_in_Support_of_Padilla/Padilla_Amicus_Brief.pdf"> here </a> . The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current &quot;war,&quot; or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat. </p>
<p> What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained.&nbsp;But until the &quot;new court&quot; folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need. </p>Wed, 11 Jun 2008 16:59:00 GMThttp://www.slate.com/blogs/convictions/2008/06/11/ye_of_little_faith.htmlDeborah Pearlstein2008-06-11T16:59:00ZNews and PoliticsYe of Little Faith209080611005Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/11/ye-of-little-faith.aspxfalsefalsefalseYe of Little FaithYe of Little FaithSo That's What A Blogginghead Ishttp://www.slate.com/blogs/convictions/2008/06/09/so_that_s_what_a_blogginghead_is.html
<p> I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/06/dahlia-vs-ben-on-bloggingheads.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/06/dahlia-vs-ben-on-bloggingheads.aspx"> Ben and Dahlia's discussion </a> of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking. </p>
<p> Here's what I just read. Story No. 1 in (take your pick) <i> Newsweek </i> , <i> Time </i> , the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five &quot;high value&quot; defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began.&nbsp;Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes <i> <a title="http://www.newsweek.com/id/140467" href="http://www.newsweek.com/id/140467"> Newsweek </a> </i> : </p>
<blockquote>
<p> Maj. Jon Jackson flew repeatedly to Guant&aacute;namo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: &quot;What, are you in the American Army now?&quot; Jackson says his client was visibly intimidated. &quot;He was shaking,&quot; he tells Newsweek. </p>
</blockquote>
<p> The ACLU's <a title="http://www.huffingtonpost.com/anthony-d-romero-and-hina-shamsi/letter-from-gitmo---camp_b_105692.html" href="http://www.huffingtonpost.com/anthony-d-romero-and-hina-shamsi/letter-from-gitmo---camp_b_105692.html"> Hina Shamsi adds </a> : &quot;Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion.&quot; I'd never found it hard to understand why. </p>
<p> Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion <a title="http://pacer.ca4.uscourts.gov/opinion.pdf/064334.P.pdf " href="http://pacer.ca4.uscourts.gov/opinion.pdf/064334.P.pdf"> here </a> . Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida.&nbsp; Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues).&nbsp;Beginning a detailed, thoughtful 98-page opinion, the court writes: </p>
<blockquote>
<p> Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored. </p>
</blockquote>
<p> Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy.&nbsp;And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years.&nbsp;Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree? </p>Mon, 09 Jun 2008 16:28:00 GMThttp://www.slate.com/blogs/convictions/2008/06/09/so_that_s_what_a_blogginghead_is.htmlDeborah Pearlstein2008-06-09T16:28:00ZNews and PoliticsSo That's What A Blogginghead Is209080609004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/09/so-that-s-what-a-blogginghead-is.aspxfalsefalsefalseSo That's What A Blogginghead IsSo That's What A Blogginghead IsBack at You Guys on Detention Prognosticationshttp://www.slate.com/blogs/convictions/2008/06/03/back_at_you_guys_on_detention_prognostications.html
<p> Marty as usual offers an </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/02/prognostications-boumediene-and-congress.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/02/prognostications-boumediene-and-congress.aspx"> elucidating post </a>
<p> in response to my question about whether Congress is likely to wade back into terrorism detention issues this coming summer.&nbsp;But&nbsp;I gotta say, Marty, I'm closer to </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/02/the-gtmo-cases-suppose-the-court-gives-congress-advice.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/06/02/the-gtmo-cases-suppose-the-court-gives-congress-advice.aspx"> David </a>
<p> on the key point. Just because a court decision in </p>
<i> Boumediene </i>
<p> might leave no serious reason why Congress </p>
<i> should </i>
<p> act before the election, doesn't mean Congress won't. </p>
<p> Though I'm well out of my depth in political punditry, I've tended to view the odds of major terrorism legislation pre-election as slim—the administration is too weak, the substantive and electoral stakes too high, and the members' political interests too diverse to get something passed this time around, especially something as mammoth as a new court, or administrative detention scheme.&nbsp;That said, Sen. Leahy this week is hosting a Senate judiciary committee hearing on how well the federal courts handle terrorism cases, featuring several witnesses who think (for deeply well-informed reasons) the federal courts do better than any plausible alternative.&nbsp;Someone felt the need to push back against some brewing detention storm.&nbsp;My hope remains they're just whistling in the wind. </p>
<p> On Marty's particular point that Congress is unlikely to think about a trial system because <i> Boumediene </i> isn't actually about the military commission/war crimes trials at Guantanamo. Quite right, <i> Boumediene </i> is directly about the far less elaborate process for determining whether someone is properly detained as a &quot;combatant&quot; (problematically defined), whether or not they've actually committed a crime under U.S. or international law.&nbsp;But while that distinction appropriately matters a lot to the court, it's not at all clear Congress wouldn't want to try to deal with both matters at once (as it did the last time it legislated on the topic in 2006). Indeed, the security court proposals I've seen floating around are geared toward putting these two decisions institutionally together, merging the terrorism trial function and indefinite detention supervision function (through something like periodic review) under the control of a single body, abandoning the federal courts for criminal terrorism trials and codifying a more formalized system of preventive detention going forward.&nbsp;The no-doubt attractive idea is to fix the Guantanamo mess in one fell swoop.&nbsp; </p>
<p> But here's the thing, and with apologies to Justice Holmes—the security court idea lets the hard case of Guantanamo make terrible law for counterterrorism detention going forward. The options for fixing Guantanamo are now grossly limited and badly skewed by the consequences of a series of years-old decisions to torture some of the detainees, and to delay any serious inquiry into all of the detainees' status until time and distance from evidence about the circumstances of their capture have made a meaningful hearing all but impossible. Courts-martial or criminal trials are far more difficult now since evidence obtained under coercion is inadmissible.&nbsp;Administrative hearings that might have been sufficient under the Geneva Conventions if conducted upon capture are now plainly inadequate.&nbsp;At this stage, none of the options are ideal.&nbsp;And none is a promising base line from which to design all detention policy going forward.&nbsp; </p>Tue, 03 Jun 2008 14:58:00 GMThttp://www.slate.com/blogs/convictions/2008/06/03/back_at_you_guys_on_detention_prognostications.htmlDeborah Pearlstein2008-06-03T14:58:00ZNews and PoliticsBack at You Guys on Detention Prognostications209080603004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/03/back-at-you-guys-on-detention-prognostications.aspxfalsefalsefalseBack at You Guys on Detention PrognosticationsBack at You Guys on Detention PrognosticationsA Summer of Security Detention?http://www.slate.com/blogs/convictions/2008/06/02/a_summer_of_security_detention.html
<p> I had the pleasure of spending a few hours late last week at the tail end of what looked to have been a terrific seminar series on current challenges in the law of war. The lectures were aimed at an audience of mostly Capitol Hill staffers and delivered by experts brought in by the seminar hosts at the U.S. military's JAG school, UVA Law School, and the International Committee of the Red Cross.&nbsp;You can find the agenda <a title="http://www.law.virginia.edu/html/news/2008_sum/ihl.htm" href="http://www.law.virginia.edu/html/news/2008_sum/ihl.htm"> here </a> .&nbsp; </p>
<p> Among other rumors buzzing about was discussion about the odds Congress would come back and legislate in a hurry after the Supreme Court hands the administration an expected loss on the question of habeas corpus for Guantanamo Bay detainees some time before the current term ends in the next month or so. (Dahlia wrote last December about oral arguments in the relevant cases, <i> Boumediene v. Bush </i> and <i> Al Odah v. United States </i> <a title="http://www.slate.com/id/2179268/" href="http://www.slate.com/id/2179268/"> here </a> . I'm with most Supreme Court-watching pundits, including Dahlia, in suspecting the government is not going to win entirely in its argument that the detainees there are only entitled to what they get under the current review scheme.) The speculated administration thought: Force the Democrats into a politically disadvantageous vote right before the election and kick the Gitmo can into the next administration with a vengeance. </p>
<p> Among other legislative peanuts already rumored to be &quot;in the hopper&quot;—a new national security court <a title="http://www.slate.com/id/2187870/" href="http://www.slate.com/id/2187870/"> scheme favored </a> (although hardly agreed on in detail) by my friends Neal Katyal and Jack Goldsmith.&nbsp;Coming off the <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/13/the-commissions.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/13/the-commissions.aspx"> delightful past seven years of experimentation </a> in our last &quot;new court&quot; enterprise down at Gitmo, Neal and Jack, I know, can appreciate my deep skepticism of the likely success of another such venture (even one more thoughtfully conceived). </p>
<p> So, before I go on at length about why I think a new court is the wrong way to go (and any proponents must read the new Human Rights First <a title="http://www.humanrightsfirst.org/us_law/prosecute/pages.asp?id=14" href="http://www.humanrightsfirst.org/us_law/prosecute/pages.asp?id=14"> report </a> about how terrorism cases have worked reasonably well in the good old-fashioned criminal courts), any of my fellow bloggers care to weigh in on the odds we'll see Congress back in the detention business before the summer is out? </p>Mon, 02 Jun 2008 19:25:00 GMThttp://www.slate.com/blogs/convictions/2008/06/02/a_summer_of_security_detention.htmlDeborah Pearlstein2008-06-02T19:25:00ZNews and PoliticsA Summer of Security Detention?209080602001Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/06/02/a-summer-of-security-detention.aspxfalsefalsefalseA Summer of Security Detention?A Summer of Security Detention?The Military Goes to Courthttp://www.slate.com/blogs/convictions/2008/05/22/the_military_goes_to_court.html
<p> <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/21/will-the-supreme-court-ever-strike-down-don-t-ask-don-t-tell.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/21/will-the-supreme-court-ever-strike-down-don-t-ask-don-t-tell.aspx"> Kenji's question </a> about whether the Supreme Court would ever overturn the military's current &quot;don't ask, don't tell&quot; (DADT) policy about homosexuality raises all kinds of interesting questions—not the least of which, as <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/22/don-t-ask-don-t-tell-do-litigate.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/22/don-t-ask-don-t-tell-do-litigate.aspx"> Phil's response </a> suggests, is about the military itself. </p>
<p> On that front, Phil's notes about the recent treatment of these cases by the CAAF are arguably consistent with a series of recent conversations I've had with experts in civilian-military relations (civilians and military).&nbsp;Although our discussions were principally on other topics, all managed to convey the sense in passing that the existence of gay soldiers was increasingly a non-issue for current troops compared&nbsp;with where matters stood 15 years ago.&nbsp;It wasn't entirely clear whether this perceived shift was being driven more by raw security need (we're in no position to be firing any of the few Arabic-speaking officers we have), or by evolving social sensibilities, or by some combination of the two.&nbsp;But I came away with the strong impression that the military, if left to its own devices, would soon be content to welcome a post-DADT world.&nbsp;Does this seem plausible, Phil, or am I just encountering an unusual sample of views? </p>
<p> And then there's the question of what judicial deference to the military looks like in a post- <i> Hamdi/Rasul/Hamdan </i> world.&nbsp;That is, a world in which it's not at all clear that old models of judicial deference to policies involving the military apply.&nbsp;My first instinct is to agree with Phil and Kenji—even in the current universe, there's a difference (constitutional, doctrinal, and practical) between military policies that regulate military members themselves and military policies that affect civilians in some way. </p>
<p> But let's say, at least for the sake of argument, that the uniformed military itself decides DADT is a terrible policy—hard to apply, hard to enforce, and ultimately counterproductive to the maintenance of an effective force.&nbsp;And let's say, too, that a group of distinguished retired generals files an amicus brief with the court arguing as much (not unlike, for example, the brief filed by military leaders in the 2003 affirmative action case, <i> Grutter v. Bollinger— </i> a brief Justice O'Connor, among others, found worthy of citation).&nbsp;In this scenario, the court is faced with a civilian executive (presumably) defending the policy and at least some fraction of the expert military community (the only fraction who can speak independently, more or less) arguing the opposite.&nbsp;Is it as clear how the court would come down then?&nbsp;Maybe so.&nbsp;Still, I'd be interested to know whether you guys think a division between the civilian leadership and the uniformed military would make any difference in the court's approach to this particular constitutional question. </p>Thu, 22 May 2008 15:12:00 GMThttp://www.slate.com/blogs/convictions/2008/05/22/the_military_goes_to_court.htmlDeborah Pearlstein2008-05-22T15:12:00ZNews and PoliticsThe Military Goes to Court209080522006Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/22/the-military-goes-to-court.aspxfalsefalsefalseThe Military Goes to CourtThe Military Goes to CourtIt's Official: We're Stuck in Gitmo Till 2009http://www.slate.com/blogs/convictions/2008/05/21/it_s_official_we_re_stuck_in_gitmo_til_2009.html
<p> In case you missed what in most news cycles would've been headline news, Defense Secretary </p>
<a title="http://www.cnn.com/2008/US/05/20/gates.guantanamo/index.html?iref=newssearch" href="http://www.cnn.com/2008/US/05/20/gates.guantanamo/index.html?iref=newssearch"> Gates told a subcommittee </a>
<p> of the Senate appropriations committee yesterday that efforts to close Guantanamo were &quot;at a standstill.&quot; CNN quotes Gates testifying: &quot;The brutally frank answer is that we're stuck.&quot;&nbsp; </p>
<p> Why? Gates says there are about 70 detainees who the DoD has cleared for release, but their home countries won't take them back, or would take back but then release them (presumably against the DoD's wishes). Other detainees are &quot;ineligible for prosecution&quot; for reasons Gates didn't detail (I have a few guesses). And there's a core (of&nbsp;fewer than a hundred, sounds like) who &quot;can't&quot; be prosecuted but whom Gates sounds very certain are bad guys.&nbsp;He'd like to continue detaining these folks somewhere other than Gitmo, but apparently the Pentagon is having a hard time persuading a state to let them bring these guys into the continental United States. </p>
<p> Could be that the DoD would have more success placing the detainees it is ready to release with home country hosts if we hadn't spent so much time calling these guys the worst of the worst (or otherwise generally making it clear we didn't much care what other countries think).&nbsp;Could also be there'd be more prosecutions if there'd been less abuse.&nbsp;And could especially be that there are federal facilities inside the United States that are under federal control, usable as prisons even if the states would rather not have these guys in their back yards. But recognizing that things are now far worse than they needed to have been doesn't exactly tell us what should happen next. Given the past mistakes (to put it kindly), none of the solutions ahead is going to be ideal.&nbsp;&nbsp; </p>
<p> Gates has been widely credited with being the non-Rumsfeld, and seems genuine in his desire (public and private) to close Gitmo down. But given this bleak testimony, it's hard to imagine any of this getting fixed anytime before 2009. </p>Wed, 21 May 2008 15:15:00 GMThttp://www.slate.com/blogs/convictions/2008/05/21/it_s_official_we_re_stuck_in_gitmo_til_2009.htmlDeborah Pearlstein2008-05-21T15:15:00ZNews and PoliticsIt's Official: We're Stuck in Gitmo Till 2009209080521006Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/21/it-s-official-we-re-stuck-in-gitmo-til-2009.aspxfalsefalsefalseIt's Official: We're Stuck in Gitmo Till 2009It's Official: We're Stuck in Gitmo Till 2009Two Courts, One Lawhttp://www.slate.com/blogs/convictions/2008/05/19/two_courts_one_law.html
<p> I'll get to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/19/a-tale-of-two-courts.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/19/a-tale-of-two-courts.aspx"> Phil's </a> McCain-Obama-and-the-courts question in a sec. But I first have to say that while I'm generally a big fan of David Savage's at the <i> L.A. Times </i> , there are parts of this <a title="http://www.latimes.com/news/politics/la-na-scotus19-2008may19,0,4169081.story" href="http://www.latimes.com/news/politics/la-na-scotus19-2008may19,0,4169081.story"> latest piece </a> that sound like they could've been written by Rush Limbaugh. </p>
<blockquote>
<p> The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done. </p>
</blockquote>
<p> Ugh.&nbsp;I appreciate the need to get this complex, age-old debate boiled down to within a journalistic word limit, but there's gotta be a better way.&nbsp;Of course <i> both </i> conservatives and liberals say judges should follow the law.&nbsp;Beyond that, and within the descriptive limits of the stereotyped terms, &quot;conservatives&quot; say that &quot;following the law&quot; means using the fewest possible interpretive clues to figure out what the law means (for statutes, text only; for the Constitution, at best, a guess at what the framers meant in 1789), and as a matter of practice they fill in any remaining areas of uncertainty (of which there are inevitably some in some cases) with broad ideological preferences—about the power of the government, the role of the courts, and the kind of society in which they want to live.&nbsp;&quot;Liberals&quot; believe&nbsp;&quot;following the law&quot; means looking to as many interpretive clues as might reasonably shed light on the text (legislative or other kinds of history, text and textual context, the purpose of the document, etc.).&nbsp;As a matter of practice, they, too, may fill in remaining areas of uncertainty with an equal and opposite set of broad baseline principles, including the principle that judges get to say what the law means. </p>
<p> There's no way around the problem of laws that are sometimes unclear. I think on balance the &quot;liberal&quot; approach to interpretation has a better chance at preserving the idea of &quot;law&quot; as having some sensible and identifiable meaning. But the reality also remains that vast swaths of the law are clear for both liberals and conservatives; that's why, among other things, not every dispute in the United States ends up in court.&nbsp;For those that do, there's also no way around the reality that judges will have baseline structural preferences and preferences about what they think &quot;justice&quot; would require in any given case. But I wouldn't deny (as many conservatives and some liberals do) that such preferences can matter, at least <i> at the margins </i> of judicial decision-making.&nbsp;That's why judges are politically appointed.&nbsp;That's why presidential appointments matter. </p>
<p> So what can we glean about McCain and Obama so far?&nbsp;I'd say that apart from some reassurance that the one reflects most conservative baseline assumptions, and that the other reflects most liberal baseline assumptions, not much.&nbsp;But to my colleagues who've watched this longer than I, I'd be pleased to stand corrected here. </p>Mon, 19 May 2008 17:13:00 GMThttp://www.slate.com/blogs/convictions/2008/05/19/two_courts_one_law.htmlDeborah Pearlstein2008-05-19T17:13:00ZNews and PoliticsTwo Courts, One Law209080519003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/19/two-courts-one-law.aspxfalsefalsefalseTwo Courts, One LawTwo Courts, One LawThe Commissionshttp://www.slate.com/blogs/convictions/2008/05/13/the_commissions.html
<p> Well, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/13/charges-dropped-against-detainee-063.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/13/charges-dropped-against-detainee-063.aspx"> Phil </a> , after reading the Pentagon's press release on the decision to drop charges (for now) against al-Qahtani, I admit to being overcome by the more cynical angels of my nature. On the one hand, I can see a pretty sensible prosecutorial rationale for separating al-Qahtani from the five other &quot;high value&quot; detainees at Gitmo charged today with involvement in planning and executing the 9/11 attacks.&nbsp;As the <a href="http://www.defenselink.mil/releases/release.aspx?releaseid=11921"> Pentagon explained </a> : </p>
<blockquote>
<p> The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case. </p>
</blockquote>
<p> Translation: Al-Qahtani had been part of the big 9/11 conspiracy case we were planning to try jointly. But because the evidence supporting al-Qahtani's prosecution is particularly dicey (given, as Phil notes, what we did to him in custody), we'd rather not jeopardize the prospect of a successful joint prosecution of the five with the particularly ugly facts surrounding al-Qahtani's treatment.&nbsp; </p>
<p> Fair enough, I suppose. We've had some of these accused 9/11 masterminds in custody for years now and have yet to bring a single one to justice, in part because of concerns the evidence is now too tainted by torture to be admissible in any court.&nbsp;A reasonable prosecutor who parachutes into this position could only try to do the best she can with the cards she's now been dealt. (I guess we'll have to see what's to be done about the fact that al-Qahtani's <a title="http://www.slate.com/id/2100543/" href="http://www.slate.com/id/2100543/"> isn't the only case </a> tainted by allegations of evidence gained under torture.) </p>
<p> But this story comes in the midst of what's already been a hell of a past few weeks of nearly soap-operatic news out of the commission trials at Gitmo—news that's included repeated allegations that the Pentagon has pressed for convictions in the interest of partisan political advantage, and the deeply embarrassing statements by the former commission chief prosecutor who resigned in protest and has spent the past several weeks touring the country explaining how the commissions cannot possibly produce fair trials.&nbsp; </p>
<p> For details on these and other allegations, you might take a look at the <a title=" http://www.nimj.org/documents/Hamdan%20Hartmann%20Ruling.pdf " href="http://www.nimj.org/documents/Hamdan%20Hartmann%20Ruling.pdf"> fascinating opinion </a> released by the commission on Friday, in which sitting commission judge (Navy JAG Capt. Keith Allred) issued an order excluding Brig. Gen. Thomas Hartmann from further involvement in the commission trial of Salim Hamdan on the grounds that Hartmann was exerting undue command influence on the trials (on behalf of the prosecution).&nbsp;Hartmann has held the only-in-Gitmo title of legal adviser to the convening authority for the military commissions—a role that essentially calls on him to provide objective legal advice to the Pentagon office in charge of running the commission proceedings.&nbsp;Apparently, the &quot;objective&quot; advice has included pushing the (since resigned) chief prosecutor to use evidence the prosecutor thought was &quot;tainted and unreliable, or perhaps obtained as a result of torture or coercion.&quot;&nbsp;Not that this concern is itself especially news.&nbsp;One can now read some of <a title=" http://www.thomasjfiscus.net/files/Ex13_Carr_Wolf_Email_Acrobat1Small.pdf. " href="http://www.thomasjfiscus.net/files/Ex13_Carr_Wolf_Email_Acrobat1Small.pdf."> the e-mail exchanges </a> from the young military prosecutors who resigned from the commission office back in 2004 after alleging, among other things, the disappearance of evidence documenting detainees' allegations of torture. But the court's decision hardly helps the commissions' already battered image. </p>
<p> And then there are the accounts from the recent trial proceedings themselves, in which, despite the countless reasons why this shouldn't be the case, some of the most eloquent statements in the courtroom have come from a detainee.&nbsp;(Attorneys with my former employer Human Rights First are again <a title="http://www.humanrightsfirst.org/blog/gitmo/2008/04/another-boycott-at-guantnamo-another.html" href="http://www.humanrightsfirst.org/blog/gitmo/2008/04/another-boycott-at-guantnamo-another.html"> blogging from Gitmo </a> during the trials, and their recent filings are well-worth a read.) I'll just end with this particular snippet from Mr. Hamdan.&nbsp;Hamdan, recall, won an extraordinary victory in 2006, when the Supreme Court held the initial commission process unlawful under U.S. and international law. For a time after that, Hamdan became (as quoted by his attorneys) a remarkable champion of the U.S. legal system.&nbsp; That view apparently has since changed. </p>
<blockquote>
<p> If you ask me the color of this table, I will tell you it's white. You say, &quot;it's black.&quot; I say, &quot;no, it's white.&quot; You say, &quot;no, it's black.&quot; I say fine, &quot;it's black.&quot; You say no, it's white.&quot; This is the American government. </p>
</blockquote>
<p> This process is serving no one's interests, most especially not those of the United States.&nbsp;Despite the best efforts of some of the many well-meaning military lawyers who've been at various stages associated with the commissions, I just don't see any way possible for this process at this point to be taken seriously.&nbsp;Have courts martial&nbsp; Have them in the continental United States.&nbsp;This just has to end. </p>Tue, 13 May 2008 21:01:00 GMThttp://www.slate.com/blogs/convictions/2008/05/13/the_commissions.htmlDeborah Pearlstein2008-05-13T21:01:00ZNews and PoliticsThe Commissions209080513003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/13/the-commissions.aspxfalsefalsefalseThe CommissionsThe CommissionsSelling Justicehttp://www.slate.com/blogs/convictions/2008/05/12/selling_justice.html
<p> Before I respond to Orin's thoughtful post, let me back up to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/11/re-the-salesmanship-of-scalia.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/11/re-the-salesmanship-of-scalia.aspx"> Dahlia's diagnosis </a> for a second - a diagnosis that I think amounts to saying that conservatives have been broadly more successful than progressives in persuading folks that originalism is the right way to approach constitutional interpretation, and/or in making this aspect of the judicial role a voting issue in their party's favor.&nbsp; I'm hardly a pollster, but I'm not sure I buy this take.&nbsp; </p>
<p> A little Googling turned up, for example, this <a title="http://www.quinnipiac.edu/x1295.xml?ReleaseID=1093 " href="http://www.quinnipiac.edu/x1295.xml?ReleaseID=1093"> nationwide Quinnipiac poll </a> from last summer finding that an essentially identical proportion of Republicans and Democrats ranked Supreme Court appointments as a very important factor in their presidential voting decisions. Now on the other hand, the poll also showed originalism gaining (and living constitutionalism declining) in popularity as between the two interpretive approaches since 2003.&nbsp; But the gain/loss was in the 4 percent to 5 percent&nbsp;range—a modest recent trend if that. (It's also interesting that even in 2007, a higher percentage still favored taking account of changing times over pure originalism—and to the extent the living constitutionalists are losing support, it's both to the originalists <i> and </i> almost equally to the undecideds. I would no doubt be reading too hopefully into the poll to note as well that interest in originalism was increasing just as the current administration was straying further and further 2003-07 from the original separation of powers we'd known and loved.) </p>
<p> But let's assume for a minute that trend is real - that people are inclining more toward originalist interpretation than they did back in 2003.&nbsp;Hard to say (beyond Scalia's raw mediagenicity) what's behind this.&nbsp; I tend to agree that part of it must be lack of a catchy, coherent alternative message—the presentation of which is, to be fair, always far more challenging for the party not in power.&nbsp; My guess is it's also made more complicated by the lingering willies many lawyers (including moderates in both parties and arguably a higher percentage of liberals) get from <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/12/a-question-comment-on-liberal-constitutionalism.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/12/a-question-comment-on-liberal-constitutionalism.aspx"> Orin's </a> suggestion that the way to win appointments and influence courts &quot;is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours?&quot;&nbsp; </p>
<p> I know whose world I'd want to live in. The thing is, in addition to freedom from Scalia's social vision, that world also includes an interest in the quaint idea (not to repeat myself) that there's still any distinction between law and politics.&nbsp; Orin may be right that a results-driven message sells better than even a divinely packaged theory; indeed, I'd wonder if what attracts at least some to &quot;originalism&quot; is not the method but the substantive image of some simpler time it conjures.&nbsp; But I bet I'm not alone in balking at the idea of pitching an approach to legal interpretation as all about the results.&nbsp; </p>Mon, 12 May 2008 16:25:00 GMThttp://www.slate.com/blogs/convictions/2008/05/12/selling_justice.htmlDeborah Pearlstein2008-05-12T16:25:00ZNews and PoliticsSelling Justice209080512003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/12/selling-justice.aspxfalsefalsefalseSelling JusticeSelling JusticeThe Salesmanship of Justice Scaliahttp://www.slate.com/blogs/convictions/2008/05/10/the_salesmanship_of_justice_scalia.html
<p> In case you living constitutionalists missed it, Dahlia just threw down the gauntlet at the end of </p>
<a title="http://www.slate.com/id/2191013/" href="http://www.slate.com/id/2191013/"> her latest account </a>
<p> of the many charms of Justice Scalia on his book tour. </p>
<blockquote>
<p> The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's [originalism] argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's &quot;living constitutionalism&quot;—the notion that the Constitution evolves with social norms—have become too easy for him to parody. Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one. </p>
</blockquote>
<p> I admit, Dahlia, my first reaction was, yeah, Justice Scalia is camera-ready for sure, but it's hardly fair to say there's no one offering an opposing view.&nbsp; There's Justice Breyer's book, as you mention.&nbsp;And the highly dynamic American Constitution Society (ACS) exists in significant part just for the purpose of developing charismatic opposition.&nbsp;Indeed, when I dashed over for a quick peek at the ACS Web site to see whether it had something to be invoked in its defense, I quickly came to the <a title="http://acslaw.org/taxonomy/term/162?page=1" href="http://acslaw.org/taxonomy/term/162?page=1"> collection of papers </a> by con law glitterati (including, <i> inter alia </i> , our own Jack Balkin) from a relatively recent symposium ACS sponsored on just what &quot;living constitutionalism&quot; is all about.&nbsp;One of my favorite sound bites was from Vanderbilt Professor Rebecca Brown, who put it with her usual eloquence: </p>
<blockquote>
<p> The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exercise its right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy. </p>
</blockquote>
<p> But then I went back and reread your condemnatory paragraph and realized—your complaint isn't so much about substance, it's about salesmanship.&nbsp;No matter how smart Breyer may be, his &quot;imagine a spherical cow&quot;-type of hypothetical colloquialisms are just too rarified to break through the noise. The liberals have plenty of theories, but none has taken an undisputed place at the top.&nbsp;And the occasional Alan Dershowitz-type notwithstanding, profs are just profs.&nbsp;We need a justice or, say, a presidential candidate who can declare one concrete version of living constitutionalism the winner and wrap it up in a stylish new package that serves a progressive constitutional agenda for the new millennium. </p>
<p> Am I reading you right—is it more the who than the what? And then the biggie—is the only remedy in your view a new face on the bench? Or do you think there's just something about sales that liberals haven't learned? </p>Sat, 10 May 2008 18:39:00 GMThttp://www.slate.com/blogs/convictions/2008/05/10/the_salesmanship_of_justice_scalia.htmlDeborah Pearlstein2008-05-10T18:39:00ZNews and PoliticsThe Salesmanship of Justice Scalia209080510001Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/10/the-salesmanship-of-justice-scalia.aspxfalsefalsefalseThe Salesmanship of Justice ScaliaThe Salesmanship of Justice ScaliaMarty Asks, What's Law Got To Do With It?http://www.slate.com/blogs/convictions/2008/05/05/marty_asks_what_s_law_got_to_do_with_it.html
<p> I'll get back to the substance of our legal debate&nbsp;on presidential authority in a sec, but first a response to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/05/does-anyone-care-whether-the-bombing-in-somalia-was-legal.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/05/does-anyone-care-whether-the-bombing-in-somalia-was-legal.aspx"> Marty's </a> two more general points.&nbsp; </p>
<p> Does anyone care what the Somalia air strikes tell us about the current legal status of the &quot;war on terror&quot;? Doesn't look like it, Marty says. Quite right, Marty. Though I'm wondering if/whether the story would've played differently if all eyes hadn't been riveted to the rather gripping Democratic <a title="http://www.slate.com/id/2190380/" href="http://www.slate.com/id/2190380/"> primary battle </a> right here in the territorial United States.&nbsp; </p>
<p> But even if it weren't for the availability of better blog fodder elsewhere, Marty asks, does anyone think law has anything to do with any question of war, foreign affairs, and/or military force? Great, and big, question.&nbsp;My quick take: Folks often don't, but they should.&nbsp;There are all kinds of reasons why there are differences between the laws governing, say, the military and the laws governing, say, health care. But a country of laws is a country of laws. I've never been able to see why it seems so easy for so many to see security as something altogether outside that framework. In any case, the law in, about, and of war has been with us for a long time.&nbsp;And as I've noted <a title="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031768" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031768"> elsewhere </a> , it has more than once in our history been the military at the forefront of making sure it's here to stay. </p>
<p> Back to Somalia. I'm confident Marty is right that the current administration (and likely most other executives) would assert that the president has the constitutional power to pursue a strike like this without going to Congress for prior authorization first.&nbsp;But what I think this administration would say about its power here in particular is that this strike was the latest salvo in the ongoing &quot;war on terror&quot; (or whatever they call it these days).&nbsp;That is, they'd say it is part of the president's commander-in-chief power to direct the use of the armed forces in an <i> ongoing </i> conflict.&nbsp;So for them it's not, as <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/04/somalia-airstrikes-and-the-bounds-of-law.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/04/somalia-airstrikes-and-the-bounds-of-law.aspx"> Diane </a> suggests, a question of what legal authorization is required to start a war (Somalia, after all, seemed to consent to this attack), but what legal limits there are on how a war is carried out. It's in that respect, I think, that&nbsp;what the AUMF says about &quot;necessary and appropriate&quot; matters. Whether or not the president needed to go to Congress in the first instance for authorization to pursue a global &quot;war on terror,&quot; Congress has now spoken on that subject.&nbsp; </p>
<p> Most folks (I include myself) think the AUMF surely contemplated the invasion of Afghanistan in 2001.&nbsp;Did it also contemplate, say, targeted killing in Somalia in 2008? Because Diane and I agree the law of war might shed some light on the scope of Congress' thinking here. I'd be interested to know whether <i> jus in bello </i> (the law <i> during </i> war, like the Geneva Conventions) would put this within the bounds of conduct in this case (assuming, Diane, that we're in the administration's particular world of war). </p>Mon, 05 May 2008 19:06:00 GMThttp://www.slate.com/blogs/convictions/2008/05/05/marty_asks_what_s_law_got_to_do_with_it.htmlDeborah Pearlstein2008-05-05T19:06:00ZNews and PoliticsMarty Asks, What's Law Got To Do With It?209080505002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/05/marty-asks-what-s-law-got-to-do-with-it.aspxfalsefalsefalseMarty Asks, What's Law Got To Do With It?Marty Asks, What's Law Got To Do With It?The War in Somaliahttp://www.slate.com/blogs/convictions/2008/05/03/the_war_in_somalia.html
<p> Well, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/01/defining-al-qaeda-and-the-authorization-for-the-use-of-military-force.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/05/01/defining-al-qaeda-and-the-authorization-for-the-use-of-military-force.aspx"> Phil </a> , two days out from the <a title="http://www.nytimes.com/2008/05/02/world/africa/02somalia.html " href="http://www.nytimes.com/2008/05/02/world/africa/02somalia.html"> latest account </a> of another U.S. missile strike in Somalia, and judging from the relative silence on the blogs, I take it pretty much everyone agrees with you that the president's authority for the strike falls within the &quot;necessary and appropriate&quot; force Congress intended in its September 2001 authorization to use military force (AUMF) against al-Qaida. Indeed, I'd bet that's what a U.S. court would have to say about it in the unlikely event it ever came up, even if it turned out this guy turned out not to be associated with al-Qaida after all. Not necessarily a happy picture, but I'm guessing where things stand under the current state of domestic law. </p>
<p> But that should hardly be the end of the discussion.&nbsp;Whatever force is &quot;necessary and appropriate&quot; is a troublingly vague notion for understanding the limits on what kind of power Congress actually wanted to delegate the president in a global campaign against the people, organizations, or groups who aided the attacks of 9/11.&nbsp; Most folks seemed to think the AUMF didn't extend to giving the president the authority to engage in domestic wiretapping without a warrant (contrary to the administration's suggestion). The Supreme Court bought that the AUMF did extend to cover some U.S. detention operations, at least to detain those picked up by U.S. military on the battlefield in Afghanistan. But until Congress gets a bit more specific, I'm guessing we'll be having this debate for a while (with the executive's position getting weaker the farther in time we get from 9/11). </p>
<p> In any case, the legality of the strike under the AUMF is only part of the question. There's also the pesky issue of whether it's a law-of-war problem to target an individual who, at the moment of attack at least, appears to have been minding his own business, far from any traditional field of &quot;armed conflict.&quot;&nbsp;If we find out someone's been contributing money to an organization that turns out to be affiliated with an organization we've identified as terrorist, could we bomb them in their sleep at anytime, anywhere they are in the world? I've no beef with those who say concepts like &quot;armed conflict&quot; and &quot;direct participation in hostilities&quot; aren't the most clearly defined aspects of the law of war. But even if we give the administration the benefit of the doubt as operating within the &quot;necessary and proper&quot; boundaries of congressional authorization under U.S. law, what exactly is the limiting principle they have in mind under the law of war? And to take it a final step, if it's not quite legal under the law of war, can it really be part of the &quot;appropriate&quot; force Congress had in mind? At least some on the Supreme Court have recognized in recent cases that this kind of international law can and should inform the interpretation of statutory mandates in the area.&nbsp; </p>
<p> Marty, Diane —a ny enlightenment to shed? </p>Sat, 03 May 2008 20:09:00 GMThttp://www.slate.com/blogs/convictions/2008/05/03/the_war_in_somalia.htmlDeborah Pearlstein2008-05-03T20:09:00ZNews and PoliticsThe War in Somalia209080503002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/05/03/the-war-in-somalia.aspxfalsefalsefalseThe War in SomaliaThe War in SomaliaNot Nader!http://www.slate.com/blogs/convictions/2008/04/29/not_nader.html
<p> Ooof—well, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/29/a-view-on-crawford-from-indiana.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/29/a-view-on-crawford-from-indiana.aspx"> Dawn </a> , I certainly didn't intend to leave the impression there are <i> no </i> differences between Indiana Dems and Republicans.&nbsp;And perhaps I may be granted some dispensation for having lived in the district that elected <a title="http://www.house.gov/burton/Issues/issue_center.htm " href="http://www.house.gov/burton/Issues/issue_center.htm"> Dan Burton </a> , R-Ind., to Congress. Repeatedly. By overwhelming margins.&nbsp;My, I hope far less troubling, thinking was just that if one were to put the Indiana parties on a national scale of liberal to conservative, former Gov., say, Evan Bayh, would not fall very close to, say, Ralph Nader. </p>
<p> But my more serious point was to raise questions about how flawed Stevens' reasoning really is here. I'd like to think my bona fides in securing free and fair elections for all are decent, particularly after having spent the last two presidential elections, for example, doing poll monitoring in blistering Florida.&nbsp;And I've no doubt the Indiana ID requirement will pose a burden on some voters, most especially those at the economic margin.&nbsp;But I read the splintered decision to leave exactly those challenges open, no? </p>Tue, 29 Apr 2008 16:11:00 GMThttp://www.slate.com/blogs/convictions/2008/04/29/not_nader.htmlDeborah Pearlstein2008-04-29T16:11:00ZNews and PoliticsNot Nader!209080429004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/29/not-nader.aspxfalsefalsefalseNot Nader!Not Nader!Only the Perception of Truthinesshttp://www.slate.com/blogs/convictions/2008/04/28/only_the_perception_of_truthiness.html
<p> A few modest additions to the early word on voter ID.&nbsp; First, for all those who would prefer to insist that Justice Stevens is easily pegged as a dyed-in-the-wool liberal, the Stevens-Roberts-Kennedy opinion in </p>
<i> Crawford v. Marion County Election Board </i>
<p> is Exhibit Q in a long list of decisions in which Stevens, for reasons entirely his own, votes against the liberal line.&nbsp; (His passionate dissent in </p>
<i> Texas v. Johnson </i>
<p> , in which the majority rejected on First Amendment grounds a Texas anti-flag burning law, is another one that leaps quickly to mind.) The great Justice Stevens is many things, but predictably &quot;liberal&quot; is not one of them. </p>
<p> &nbsp; </p>
<p> Second, on <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/28/a-solution-in-search-of-a-problem.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/28/a-solution-in-search-of-a-problem.aspx"> Marty's discussion </a> of the paucity of evidence of fraud - Marty is of course right the evidence that fraud has been an actual problem is thin indeed.&nbsp; But I read Stevens' opinion to say that addressing actual fraud isn't the <i> sine qua non </i> of legitimate state interests.&nbsp; Rather, a state measure that promotes the <i> perception </i> of election fairness - whether or not fairness is actually a problem (even in <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/28/facial-id-s-facial-challenges-and-in-your-face-politics.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/28/facial-id-s-facial-challenges-and-in-your-face-politics.aspx"> a truthiness sense </a> ), or whether the measure will do anything to help the putative problem itself - is an interest itself sufficient to survive facial challenge (assuming the burdens on voters are not too great). That's the upshot of the lengthy passage from the Carter-Baker Federal Election Reform Commission findings Stevens quotes: &quot;The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.&quot;&nbsp; And it's of course the import of the separate section the Stevens opinion devotes to the state's interest in &quot;safeguarding voter confidence.&quot;&nbsp; Especially given the hit voter confidence has taken in the post- <i> Bush v. Gore </i> world, I admit I can't see anything wrong with acknowledging this as a legitimate state interest. </p>
<p> As for the burden side of the equation - how much of a burden is an ID requirement? - Stevens, relying heavily on the district court's finding of fact, concluded that he just didn't see the evidence of the statute's generally burdensome nature (although burdensome in specific cases, absolutely possible).&nbsp; So given a legitimate state interest and the possibility that remains of proving the law too burdensome in the next case down the road, I'm not sure Stevens was actually that far out on a limb here. </p>
<p> Finally, having registered to vote for the first time as a resident of Indiana (I attended a fine public high school just outside Marion County), and being asked upon registration to repeat twice (in all friendliness and sincerity) which non-Republican party I wished to associate myself with (&quot;You want to register with <i> what </i> party?&quot;), a word on Indiana politics.&nbsp; The Republicans are conservative.&nbsp; The Democrats are conservative.&nbsp; The difference between them is, conservatively speaking, negligible on a great many matters of state concern.&nbsp; Now it could well be that things have changed a lot in the past, um, number of years since I registered to vote.&nbsp; But I wouldn't put much stock on the view that the outcome of this particular case is likely to rock the Indiana political landscape anytime soon.&nbsp; For that matter, I'm not entirely sure how much a splintered Supreme Court opinion leaving open a host of other possible challenges to such laws does to change anything either - other than to launch a new wave of litigation that should keep us here at <em> Slate </em> occupied well beyond election day. </p>Tue, 29 Apr 2008 03:07:00 GMThttp://www.slate.com/blogs/convictions/2008/04/28/only_the_perception_of_truthiness.htmlDeborah Pearlstein2008-04-29T03:07:00ZNews and PoliticsOnly the Perception of Truthiness209080428003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/28/only-the-perception-of-truthiness.aspxfalsefalsefalseOnly the Perception of TruthinessOnly the Perception of TruthinessWould That They Were All Johnny Depphttp://www.slate.com/blogs/convictions/2008/04/26/would_that_they_were_all_johnny_depp.html
<p> But since they're not, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/26/wait-a-minute-don-t-we-want-the-royal-navy-to-detain-pirates.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/26/wait-a-minute-don-t-we-want-the-royal-navy-to-detain-pirates.aspx"> Ben </a> is of course right that pirates should be detained if they've done bad things.&nbsp;That said, I'm not sure it's fair take the <a title="http://www.timesonline.co.uk/tol/news/uk/article3736239.ece" href="http://www.timesonline.co.uk/tol/news/uk/article3736239.ece"> U.K.'s apparent move </a> not to detain some pirates to be the human rights law failure Ben does. </p>
<p> For one thing, the flip side of the story of this particularly silly decision out of the British Foreign Office is <a title="http://www.military.com/news/article/us-france-push-un-to-tackle-pirates.html?col=1186032310810 " href="http://www.military.com/news/article/us-france-push-un-to-tackle-pirates.html?col=1186032310810%20"> the larger story </a> about the United States and (wait for it) France working vigorously together (with the U.N.) to crack down on (and detain) pirates off the Somalia coast. For another thing, it'd be reasonable to ask whether Britain's skittishness about anti-pirate coalition efforts here is bound up with its <a title="http://www.cabinetoffice.gov.uk/upload/assets/www.cabinetoffice.gov.uk/publications/intelligence/20070725_isc_final.pdf" href="http://www.cabinetoffice.gov.uk/upload/assets/www.cabinetoffice.gov.uk/publications/intelligence/20070725_isc_final.pdf"> ongoing discomfort </a> working with the United States in detention operations generally (in light of our recent track record of torturing folks we detain).&nbsp;In any case, I wouldn't claim the U.K. decision as an unalloyed victory for human rights.&nbsp;But I always balk a bit at generalizing from this kind of one-off case.&nbsp;Just because the occasional O.J. Simpson trial makes the criminal justice system look loopy doesn't mean we throw the whole thing out and start from scratch. </p>
<p> Now, Ben's larger question about the potential dilemma posed by nonrefoulement obligations is an important one. (Nonrefoulement generally refers to treaty obligations not to send individuals back to countries where they're likely to face some horrific abuse of their own human rights.)&nbsp; The U.K. is right that they have treaty obligations not to send detainees back to places where they're likely to be tortured. So what's a well-meaning nation to do with the pirates (or Gitmo-bound terrorists) it arrests? Here, I'd say piracy is a much easier case.&nbsp; It could be that there's some important law-of-the-sea rules I don't know about (so guidance here most welcome), but my guess is piracy pretty much everywhere is a crime. And if there are regulatory gaps in maritime security law that make it not a crime (or not prosecutable except in the home country of the pirate), then those laws need to be fixed. Not a fix:&nbsp;setting them free in any country where they'll either be tortured or be set free and go about torturing folks themselves. In all events, I'm not sure it's possible to blame human rights law for much complicating this. </p>
<p> Gitmo, as Ben well knows, is a whole other kettle of fish because, among other reasons, many of the detainees there don't seem to have committed any crime or, it is often asserted, haven't committed any crime we can reasonably prove. So without wading into those treacherous waters (happy to get back to that debate in another post sometime, Ben), let's focus on the folks who actually pose the nonrefoulement question.&nbsp;These are the detainees we've decided we want to let go from Gitmo but just don't know where to put them when they're freed—because they face torture in their home country and because no other country in the world is willing to take in a former resident of Gitmo even after the U.S. government has publicly concluded he poses no threat to us.&nbsp; </p>
<p> Here I'd say this isn't a dilemma, it's where the human rights rubber meets the road.&nbsp;When the United States, the United Kingdom, and a host of other nations signed onto the treaties that create asylum obligations, they were making a commitment to take in those facing gross human rights abuse overseas.&nbsp;It's possible that the United States would be having more success placing some of these (dare it be said, innocent) Gitmo detainees with other asylum hosts if we hadn't spent much of the past seven years telling the rest of the world that they were all the worst of the worst.&nbsp;Or making it clear to the rest of the world how little we care what they think. &nbsp;But feel free to come back at me on this. ... </p>Sat, 26 Apr 2008 17:48:00 GMThttp://www.slate.com/blogs/convictions/2008/04/26/would_that_they_were_all_johnny_depp.htmlDeborah Pearlstein2008-04-26T17:48:00ZNews and PoliticsWould That They Were All Johnny Depp209080426003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/26/would-that-they-were-all-johnny-depp.aspxfalsefalsefalseWould That They Were All Johnny DeppWould That They Were All Johnny DeppAnd Another Thing, Jackhttp://www.slate.com/blogs/convictions/2008/04/21/and_another_thing_jack.html
<p> As Jack mulls over a response to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/the-misleading-national-surveillance-state.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/the-misleading-national-surveillance-state.aspx"> Orin </a> &nbsp;on computers in the &quot;national surveillance state,&quot; I'd like to raise a different set of beefs with the <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/prosecution-as-prevention-in-the-national-surveillance-state.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/prosecution-as-prevention-in-the-national-surveillance-state.aspx"> Jack-type response </a> to today's <a title="http://www.washingtonpost.com/wp-dyn/content/article/2008/04/20/AR2008042002227_pf.html " href="http://www.washingtonpost.com/wp-dyn/content/article/2008/04/20/AR2008042002227_pf.html"> <i> Washington </i> <i> Post's </i> story </a> about the government's recent failures in terrorism trials.&nbsp; Two points. </p>
<p> &nbsp; </p>
<p> First, it seems awfully easy to come up with spin either way in interpreting what a mistrial or acquittal in any particular terrorism case really means.&nbsp; <a title="http://balkin.blogspot.com/2008/04/prosecution-as-prevention-in-national.html " href="http://balkin.blogspot.com/2008/04/prosecution-as-prevention-in-national.html"> Jack looks </a> at the <i> Post </i> story and sees a trend in counterterrorism criminal justice toward &quot;violating people's legal rights by bringing prosecutions too early and with insufficient evidence to convict.&quot; (I'm not actually sure what rights Jack thinks it violates if a prosecutor brings a case she believes in good faith amounts to criminal activity and the jury later acquits.) &nbsp;Others (including others quoted in the <i> Post </i> ) as plausibly see mistrial or acquittal in such cases as just a sign of the great jury trial system at work.&nbsp; More broadly, for as many administrative spokespeople as I've heard say the approach changed after 9/11, and the FBI is newly in the &quot;prevention&quot; business now, I've heard other FBI officials say that their approach to crime (and terrorism in particular) has always been prevention.&nbsp; Both sets of arguments seem to me far easier to make than to prove. </p>
<p> But that brings me to point two: anecdotal reports like the <i> Post's </i> are anecdotal. They may be a signal of the phenomenon Jack fears.&nbsp; Or not.&nbsp; We'd have to know more about what's going on - a lot more - to say for sure.&nbsp; How many of these (for lack of a better term) 'preventive' prosecutions post-9/11 have been brought? What statistics exist about what we were doing in this realm (or one closely analogous) before 9/11?&nbsp; What's a typical win/loss record in some control set of criminal cases?&nbsp; What's the total win/loss record in this particular set?&nbsp; And inflated rhetoric of attorneys general notwithstanding, on what basis have prosecutors decided to bring these cases - because they were desperate for some way to lock these guys up, or because they actually thought these guys had committed a crime? </p>
<p> Theory can be enormously helpful in the realm of counterterrorism, but answers to these particular questions (unlike so many others in this field) are actually knowable.&nbsp; I'd thus particularly applaud the work of folks like <a title="http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=119080 " href="http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=119080"> Bobby Chesney </a> , one of the few scholars I know who is studying what's actually happening in more than one case at a time, and who is described by the <i> Post </i> as painting a &quot;complicated&quot; picture about the federal record in pursuing such 'preventive' cases.&nbsp; Jack, you'll no doubt <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/orin-and-the-national-surveillance-state.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/orin-and-the-national-surveillance-state.aspx"> berate me, too </a> , for not reading enough of your work, but I guess I suspect Bobby's right - the real &quot;trend&quot; picture is more complicated than the one you paint. </p>Tue, 22 Apr 2008 00:53:00 GMThttp://www.slate.com/blogs/convictions/2008/04/21/and_another_thing_jack.htmlDeborah Pearlstein2008-04-22T00:53:00ZNews and PoliticsAnd Another Thing, Jack209080421009Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/21/and-another-thing-jack.aspxfalsefalsefalseAnd Another Thing, JackAnd Another Thing, JackReply to Orin on Standards in Legal Academehttp://www.slate.com/blogs/convictions/2008/04/15/reply_to_orin_on_standards_in_legal_academe.html
<p> Having just emerged from a period of reading many more law review articles than is no doubt good for my health, I guess I just have to dissent from&nbsp; </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/14/off-legal-couns-l-rev-2003.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/14/off-legal-couns-l-rev-2003.aspx"> your view,&nbsp;Orin </a>
<p> ,&nbsp;that &quot;what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read&quot; in legal scholarship.&nbsp;Yoo's memos certainly fit what one might describe as bad legal scholarship. But unless there's some law-faculty oath I don't yet know of, it sure doesn't seem to me like that's the &quot;prevailing academic standard.&quot; </p>
<p> Part of our disagreement may just be identifying what's wrong with Yoo's work.&nbsp;You suggest that all of legal academe is filled with &quot;result-oriented&quot; work, as if this is the central failing of Yoo.&nbsp;The memos are indeed result-oriented.&nbsp;But it seems to me quite possible to write a memo/article that reaches a result the author prefers while still making a useful contribution to scholarship—either because the article sheds useful light on the historical, philosophical, pragmatic, etc. underpinnings of the theory she supports, or because it honestly engages an existing debate and makes an original case for her side's view, or for a host of other reasons.&nbsp; Electing to pursue research one believes will ultimately support one's views—as long as the research itself is honestly pursued and contrary results accounted for—doesn't necessarily doom the work. </p>
<p> It's thus your later criticism that's the key—i.e., that the work isn't &quot;real, honest, or serious.&quot;&nbsp;By that metric, Yoo's memos just don't fly.&nbsp;I haven't read everything in the law reviews this year (heaven forbid).&nbsp;And I'm willing to buy results-oriented as a descriptor. But do you really think the prevailing standard is also dishonest or false?&nbsp;If so, we may be in the wrong business here. </p>Tue, 15 Apr 2008 18:09:00 GMThttp://www.slate.com/blogs/convictions/2008/04/15/reply_to_orin_on_standards_in_legal_academe.htmlDeborah Pearlstein2008-04-15T18:09:00ZNews and PoliticsReply to Orin on Standards in Legal Academe209080415004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/15/reply-to-orin-on-standards-in-legal-academe.aspxfalsefalsefalseReply to Orin on Standards in Legal AcademeReply to Orin on Standards in Legal AcademeAcademic Freedom and Yoohttp://www.slate.com/blogs/convictions/2008/04/12/academic_freedom_and_yoo.html
<p> I agree with </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/11/yoo-tenure-and-the-academy.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/11/yoo-tenure-and-the-academy.aspx"> Marty </a>
<p> that the questions raised about Yoo's position at Berkeley are complex.&nbsp;I do not hesitate to hold Yoo ethically and morally culpable for what he did as a government lawyer.&nbsp;I am skeptical but I suppose open to specific persuasion that there is a clear case under existing law for his criminal culpability as well.&nbsp;Every employer has its standards for measuring its employees against these matters.&nbsp;And while I suspect Berkeley was mistaken to take him back for a variety of reasons, it seems to me inesapably the employer's decision about whether Yoo's behavior in these regards violated the standards they have. </p>
<p> What I find perhaps most troubling for a deep believer in <i> academic </i> freedom is that Yoo's most infamous legal memos (in particular, the argument that congressional statutes cannot constrain the president's exercise of his powers as commander in chief) are blatantly, embarrassingly <i> wrong </i> under the law.&nbsp; </p>
<p> I keep wondering what Berkeley (or Harvard or Princeton, etc.) would do if a professor of molecular biology had written a medical opinion while in government employ disclaiming the truth of evolution—and not only that, had continued to vigorously defend his rejection of evolution once returned to his full-time employment teaching university students a course in molecular biology.&nbsp;Is academic freedom the freedom not just to be wrong (which of course it is) but also to be, in this sense, false?&nbsp;Or perhaps academic freedom extends as far to continue the professor's employment but to insist that he retitle his course not Molecular Biology but rather something to the effect of Professor Smith's Imaginings of the Biological World? </p>
<p> Law, of course, is not science—as much as it might pain some of us to admit.&nbsp;It is difficult in the extreme to declare a legal proposition false with the same kind of certainty with which one can declare evolution a reality.&nbsp;But as one who clings (so to speak) to some belief in at least the semi-autonomy of law, it is at least painful to accept that one of the top law schools in the country embraces the idea that one of its professors could teach students a course in Introduction to Constitutional Law while advancing a view of the Constitution that is simply without support in text, history, logic, or life.&nbsp;Because law is not science, and because academic freedom is part of the kind of world I want, in the end I suppose I'll just have to learn to accept it.&nbsp;Would I pay for my kid to attend this law school?&nbsp;Not in a million years. </p>Sat, 12 Apr 2008 19:49:00 GMThttp://www.slate.com/blogs/convictions/2008/04/12/academic_freedom_and_yoo.htmlDeborah Pearlstein2008-04-12T19:49:00ZNews and PoliticsAcademic Freedom and Yoo209080412003Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/12/academic-freedom-and-yoo.aspxfalsefalsefalseAcademic Freedom and YooAcademic Freedom and YooWomen in Lawhttp://www.slate.com/blogs/convictions/2008/04/08/women_in_law.html
<p> Well, Doug, between <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/the-endorsement-follows-the-covenant-why-i-endorse-senator-obama.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/the-endorsement-follows-the-covenant-why-i-endorse-senator-obama.aspx"> your support for Obama </a> and <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/08/not-just-women-s-work.aspx " href="http://www.slate.com/blogs/blogs/convictions/archive/2008/04/08/not-just-women-s-work.aspx"> that last post </a> lamenting the continuing dilemmas of women lawyers with families, the progressive lawyers over at the American Constitution Society may need to declare you an honorary member.&nbsp; </p>
<p> I've always been reluctant to wade into public discussions about women and law, in part I suspect because ever since taking a great college course in feminist theory from de Beauvoir to Gilligan to McKinnon to bell hooks (et seq.), I've had the nagging feeling I've not read anything genuinely new on the subject of women's equality in the United States. Sure, there've been regular and unfortunate flare-ups in the appalling &quot;mommy wars&quot; and, of course, a regular diet of studies on women in the professions—which are always useful but never entirely convincing on questions of how things are, why things are as they seem to be, or what should be done about any of it.&nbsp;And there is also the likely possibility I've just not read everything I need to read. </p>
<p> Yet despite the risk of adding to the surfeit of nothing new, I admit Doug's post just brought rather acutely to mind several conversations I've had in the past few months with law professor friends and colleagues of mine, many of whom have been generous in offering advice and guidance as I ponder embarking on a career in legal academia (having already experienced for at least some time men and women at work during stints as a federal law clerk, a law firm associate, and a nonprofit attorney).&nbsp; </p>
<p> The most daunting advice was from a female tenured professor, who warned that constitutional law especially was one of the last great bastions of good-old-boy power in legal academe and that&nbsp;I'd better steel myself with all the arrogance I could muster if I expected to survive. And, fair enough, the &quot;human rights law&quot; conferences I've attended have been overflowing with talented women, while I've felt noticeably more isolated on panels in the realm of national security or constitutional law.&nbsp;The women I've spoken to often echo (more often less sternly) the notion that this is some remaining vestige of the good old boys. Most men have said they see it as an unexplained dearth of women in the field.&nbsp; </p>
<p> (A few other men in recent years have suggested that I, like their wives/colleagues' wives/junior colleagues, just not worry about a &quot;real&quot; tenure-track job.&nbsp;If research/writing/teaching is what I enjoy, easy enough to do that in a perpetual researcher capacity. After all (I paraphrase only slightly), my husband has tenure enough for us both.&nbsp; Such dinners generally haven't extended through dessert.&nbsp;And I am reminded of why arrogance can be such a boon to individual happiness in life.) </p>
<p> The most gender-uniform warnings, though, come from a certain kind of parent of young children (and I know such folks of both genders). &quot;I haven't written anything since the first one was born.&quot; &quot;I only write during the summer.&quot; &quot;Our faculty seminars are always held at dinnertime/bedtime/after school.&quot;&nbsp;And so on.&nbsp;Despite all the generally well-meaning people of both genders I know and the every-few-years-in-every-venue-I've-worked-stunningly-sexist remarks I've heard (my longtime personal favorite: &quot;You have to realize your mind is a sword, people are going to perceive it that way, and you need to work on softening that.&quot;)—it's the parenting argument I find most currently compelling. I've no doubt there are gender differences writ large here in how this plays out. But for this kind of professional parent of either gender, there just aren't enough hours in the day.&nbsp;And so I find myself struck by the family-friendly musings of Doug Kmiec. But pessimistic there'll be a solution during my working life. </p>
<p> Your advice, colleagues, remains most welcome. </p>Tue, 08 Apr 2008 16:42:00 GMThttp://www.slate.com/blogs/convictions/2008/04/08/women_in_law.htmlDeborah Pearlstein2008-04-08T16:42:00ZNews and PoliticsWomen in Law209080408002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/08/women-in-law.aspxfalsefalsefalseWomen in LawWomen in LawJack's Fixhttp://www.slate.com/blogs/convictions/2008/04/06/jack_s_fix.html
<p> One of the things I agree with </p>
<a title="http://www.tnr.com/politics/story.html?id=377c198a-033f-46e5-b233-fb55af4174b8 " href="http://www.tnr.com/politics/story.html?id=377c198a-033f-46e5-b233-fb55af4174b8"> Ben Wittes </a>
<p> about is the need to get serious about how a next administration is going to fix various aspects of U.S. counterterrorism policy. That's why one of the things I liked most about </p>
<a title="http://www.slate.com/id/2187870/ " href="http://www.slate.com/id/2187870/"> Jack Goldsmith's column </a>
<p> this week on the rule of law in the &quot;war on terror&quot; is that its &quot;fixing it&quot; premise accepts the reality that something is broken. On this, and several other points he makes, Jack and I certainly agree. In the spirit of productive dialogue, though, I focus here on a few of the areas on which we don't. </p>
<p> Let me start with two points in this post, and I'll turn to the biggie question of a national security court separately.&nbsp;First, I'm 100 percent&nbsp;in accord with Jack's finding that the administration has had a bad habit of over-classifying information, and it would help for the public to know more—about the nature of the threat and our own responses to it. But disclosure for the purpose of restoring government credibility (though we surely need that too) is rather the least of the reasons why over-classification needs a fix. As pressing is the purpose of avoiding another 9/11—in no small measure a result of the failure of the pathologically secret intelligence agencies to share information with the other state and federal agencies that might actually help catch the terrorists.&nbsp;And then there's that whole old-fashioned idea of open government in a democracy.&nbsp;Or something like that. </p>
<p> Anyway, given all that, I was then surprised to encounter what sounded strangely like a warning to the next administration—that <i> after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won't rush to eliminate the Bush program </i> and that <i> he or she will realize that any legal climb-down that is later perceived as even indirectly responsible for an attack would be a personal and political disaster. </i> </p>
<p> Actual legal obstacles were not principally (or, as best I can tell, even modestly) what prevented the U.S. government from averting the attacks of 9/11. The notion that they were seems to me to have been a myth propagated in the wake of the attacks to avoid a more clear-eyed (and less favorable) assessment of the administration's less-than-stellar counterterrorism performance.&nbsp;Regardless, as authors, bloggers, and the like, we have some say in whether &quot;any legal climb-down&quot; (by which I take it he means any difference in approach) in detention or interrogation policies in the next administration is &quot;perceived&quot; as responsible for any next attack. I'd hate to think we're setting up the next perception spin even before any &quot;climb down&quot; or attack happens. That may well not be how Jack intended this passage. But that's how I read it. </p>
<p> A second issue. Jack wisely recognizes the importance of working with (rather than, say, antagonizing) international allies on whom we depend for success in our counterterrorism efforts. But I remain deeply skeptical of the utility of the recommendation he puts forward (one that has also come in recent months from current State Department Legal Adviser John Bellinger).&nbsp;Namely, that we work toward a new international legal framework for handling terrorist suspects.&nbsp;As best I can tell, the impetus for the &quot;more international law&quot; idea seems to come from two perceived needs: 1) Guantanamo is a catastrophic mess, it needs to be closed, and we need to do something with the prisoners that remain there, and 2) neither international nor domestic U.S. law allow us to preventively detain terrorist people who we think might someday pose a danger but as to whom we have no real evidence yet that could show they've done anything wrong. </p>
<p> On one, yes, of course Guantanamo is a mess—for a host of reasons. We didn't afford the detainees there even the most basic status hearing under the Geneva Conventions when we first picked them up (for no discernable reason) and still had some hope of figuring out whether we had evidence justifying their detention; we picked up a bunch of the wrong (i.e. innocent) people; we treated some of them so badly we may've compromised our ability to secure convictions of those who may actually have done bad things; and we've created the best recruiting tool al-Qaida ever could've imagined.&nbsp;One could go on. But why then wouldn't it be far better to try to &quot;fix Guantanamo&quot; by crafting a Gitmo-specific solution for these detainees—not by compromising the next 20-plus years of terrorism detention policy and practice as a result of trying to dig ourselves out of one of the worst security policy decisions of recent history?&nbsp; Put differently, I can't see why we should let the especially hard case make especially bad law.&nbsp; Whatever we do next about Gitmo—and it should involve closure, it should involve Congress, and it should involve some combination of trial, repatriation and release—I'd just as soon try not to take fixing it as our baseline for all detention measures going forward. </p>
<p> Now, what of preventive detention (either for those still in Gitmo or, more to the point, for anyone we might pick up tomorrow)? The view that the current web of domestic and international laws regarding detention (a key area of dispute) is insufficient for dealing with the detention needs of international counterterrorism is, to say the very least, contested.&nbsp;And for reasons I'll get to in a next post about a national security court, I think most arguments in favor of broader detention authority just don't hold water. In the meantime, I'd like to know whether Jack, John, et al. think even a next administration (with necessarily less international-law lethal baggage than this one) will be able to overcome hurdles of trying to negotiate a new framework here with an international community that has failed to reach consensus for decades even on the threshold question of what we mean by &quot;terrorism.&quot;&nbsp; Perhaps more to the point, which do they think is more likely to come sooner—a new international legal framework or the next attack? </p>Sun, 06 Apr 2008 18:32:00 GMThttp://www.slate.com/blogs/convictions/2008/04/06/jack_s_fix.htmlDeborah Pearlstein2008-04-06T18:32:00ZNews and PoliticsJack's Fix209080406004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/06/jack-s-fix.aspxfalsefalsefalseJack's FixJack's FixMore Yoohttp://www.slate.com/blogs/convictions/2008/04/03/more_yoo.html
<p> In a modest attempt to allow equal time, I note that <em> Esquire </em> magazine has posted what it calls the first interview with John Yoo since this week's release of the latest memo.&nbsp;You can find it <a title="http://www.esquire.com/the-side/qa/john-yoo-responds " href="http://www.esquire.com/the-side/qa/john-yoo-responds"> here </a> .&nbsp;Not that the interview sheds much light, but my favorite excerpt is when the interviewer presses Yoo on his decision to extract the pain-associated-with-organ-failure-or-death standard from an unrelated statute as a means of fleshing out the definition of the federal crime of torture. </p>
<blockquote>
<p> <em> Esquire </em> : But at the same time, you as a human being writing that phrase -- this is not legal theory anymore. We're in the real world and its going to have a body count <em> . </em> </p>
<p> Yoo: This is unpleasant. Don't interpret what I'm saying as&nbsp;though I was happy to do this or eager, or I felt some satisfaction. Mainly because I had read what the British and the Israelis had gone through — they had their own struggle with this issue and they had their own judicial decisions — and I had read all kinds of articles and books about this issue. I mean, it's a difficult issue. You have to draw the line. What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think that part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more — we could have written it in a much more palatable way, but it would have been vague. </p>
</blockquote>
<p> Can't tell from this whether the greater unpleasantness for Yoo is in the topic or in the interview. </p>Thu, 03 Apr 2008 21:41:00 GMThttp://www.slate.com/blogs/convictions/2008/04/03/more_yoo.htmlDeborah Pearlstein2008-04-03T21:41:00ZNews and PoliticsMore Yoo209080403006Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/03/more-yoo.aspxfalsefalsefalseMore YooMore YooStuck on Yoohttp://www.slate.com/blogs/convictions/2008/04/03/stuck_on_yoo.html
<p> Of all the passages in this latest memo worthy of dissection, I still can't get past the following: </p>
<blockquote>
<p> <em> Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be </em> the only way <i> to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be </i> the only method <i> to obtain it. </i> <a title="http://media.washingtonpost.com/wp-srv/nation/pdfs/OLCMemo1-19.pdf?sid=ST2008040102264" href="http://media.washingtonpost.com/wp-srv/nation/pdfs/OLCMemo1-19.pdf?sid=ST2008040102264"> Memo </a> , p.4 (emphasis added). </p>
</blockquote>
<p> No citation to authority.&nbsp;No offer of any logical or factual support for the claim.&nbsp;No reference to administration policy documents, security analyses, military or intelligence risk assessments, or any particularly evident basis for the statements of any kind.&nbsp;Just Yoo. </p>
<p> Hard to say what bothers me most here.&nbsp;One possibility is just the painful internal contradiction. John Yoo (among others) has devoted so much time to trumpeting the importance of judicial deference to executive expertise. Too bad it turns out that the only &quot;executive&quot; expertise evident here is Yoo's own take on what might be effective in preventing future attacks. <i> Can't particularly think of anything other than torturing captured detainees.&nbsp;So that must be the only way.&nbsp; </i> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </p>
<p> Maybe it's that the passage appears not in some foreign policy article or popular op-ed, in which citation to any supporting basis for such assertions wouldn't be expected — but rather in a <i> legal </i> memo, as part of a <i> legal </i> analysis of the president's powers as commander in chief — to which any first-year law firm associate would respond by just hitting the Alt-F8 macro demanding the author &quot;state the basis&quot; of the claim.&nbsp;Or maybe it's the entirely illusory nature of the proposition. <i> We &quot;may be&quot; all about to explode.&nbsp;Or not. Just wanted to throw that out there as a possibility as the reader contemplates whether to buy into the otherwise, uh, unusual, legal analysis that follows. </i> </p>
<p> Or maybe it's just how painfully ill-informed it sounds in the face of the actually voluminous body of pre- and post-9/11 security policy assessments ( <a title="http://www.gpoaccess.gov/911/index.html " href="http://www.gpoaccess.gov/911/index.html"> 9/11 Commission Report </a> included) listing the hundreds of ways other than custodial interrogation one might go about preventing the next attack.&nbsp;Or in the face of the recognition of the U.S. Intelligence Science Board that &quot;knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collection ... [with] current populations of interest.&quot; That is, it is entirely unclear based on present knowledge how to secure the revelation of accurate information from an individual. </p>
<p> At a minimum, there's no way this paragraph should do any legal work.&nbsp;Yet this paragraph is in no small part how Yoo gets around to defending the legality of torture.&nbsp;And it's part of how he gets around to saying torture should be up to the executive branch alone.&nbsp;So maybe what scares me most is that counterterrorism is indeed serious business — and I would really, really like to think someone other than John Yoo was minding the store. </p>Thu, 03 Apr 2008 13:18:00 GMThttp://www.slate.com/blogs/convictions/2008/04/03/stuck_on_yoo.htmlDeborah Pearlstein2008-04-03T13:18:00ZNews and PoliticsStuck on Yoo209080403004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/04/03/stuck-on-yoo.aspxfalsefalsefalseStuck on YooStuck on YooThe Times, They Are aChangin'http://www.slate.com/blogs/convictions/2008/03/28/the_times_they_are_achangin.html
<p> Wow, Eric, you packed a lot into that </p>
<a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/the-reporter-as-dramatic-hero-some-skepticism.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/the-reporter-as-dramatic-hero-some-skepticism.aspx"> provocative opening post </a>
<p> , and led me to read </p>
<a title="http://www.slate.com/id/2187498/pagenum/all/#page_start" href="http://www.slate.com/id/2187498/pagenum/all/#page_start"> Lichtblau's how-the-media-sausage-is made story </a>
<p> I confess I might not otherwise have read, given the day job.&nbsp; Call me a cynic, but I've invariably come away from such stories believing that the press operates in a deeply, deeply flawed way that is, nevertheless, probably the best among alternatives available in a democracy (modulo some more aggressive professional watchdog NGOs and welcoming suggestions of how one might sensibly deal with runaway profit motives).&nbsp; Pretty much left with the same sense here. </p>
<p> But it strikes me that the conversation so far (involving you, <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/28/defending-my-devotion-to-the-forms-of-legality-verging-on-fanaticism.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/28/defending-my-devotion-to-the-forms-of-legality-verging-on-fanaticism.aspx"> Marty </a> , <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/good-disclosures-and-bad-ones.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/good-disclosures-and-bad-ones.aspx"> Orin </a> , <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/there-may-be-hard-cases-but-the-fisa-story-isn-t-one-of-them.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/there-may-be-hard-cases-but-the-fisa-story-isn-t-one-of-them.aspx"> David </a> , <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/forget-nyt-what-s-bush-s-excuse-for-keeping-law-violations-secret.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/27/forget-nyt-what-s-bush-s-excuse-for-keeping-law-violations-secret.aspx"> Dawn </a> ) is less about a disagreement over journalistic practices and more about this larger problem of who makes decisions on questions of legality and national security.&nbsp; I take it that you don't think the press should exercise much independent judgment here but rather substantially defer to the executive on questions of effectiveness (though I vigorously join Marty in rejecting your reasons why). But I was perhaps most startled by your suggestion that &quot;in an ideal world,&quot; it would be &quot;better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality.&quot; </p>
<p> Setting aside all kinds of important First Amendment issues here, I'd love to hear your case for why the judiciary has comparatively greater institutional competence than the media in making such an assessment.&nbsp; If I hadn't read any of <a title="http://www.law.uchicago.edu/faculty/posner-e/ppw.html" href="http://www.law.uchicago.edu/faculty/posner-e/ppw.html"> your previous work </a> , I might read you as here arguing for an <i> expanded </i> judicial role in reviewing the national security secrecy views of the executive.&nbsp; But it can't possibly be so, can it? </p>Fri, 28 Mar 2008 15:21:00 GMThttp://www.slate.com/blogs/convictions/2008/03/28/the_times_they_are_achangin.htmlDeborah Pearlstein2008-03-28T15:21:00ZNews and PoliticsThe Times, They Are aChangin'209080328004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/28/the-times-they-are-achangin.aspxfalsefalsefalseThe Times, They Are aChangin'The Times, They Are aChangin'Munaf and Omar, Cont'dhttp://www.slate.com/blogs/convictions/2008/03/24/munaf_and_omar_cont_d.html
<p> Thank heavens for you, too, Marty. Otherwise I would've completely overlooked the <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/23/thank-heavens-for-the-bulgarians-in-iraq.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/23/thank-heavens-for-the-bulgarians-in-iraq.aspx"> powerful argument </a> that it's really Bulgaria pulling the strings in Iraq. </p>
<p> As for the rest of the merits, there's nothing you said, Marty, that I have much cause to fault. <i> Hirota </i> is readily distinguishable, particularly (for better and worse) on citizenship grounds.&nbsp;And the MNF-I arguments seem particularly likely to ring hollow on a court that has, so far, been more persuaded by arguments based in reality.&nbsp;As Justice Kennedy put it in <i> Rasul </i> : &quot;Guantanamo Bay is <i> in every practical respect </i> a United States territory.&quot;&nbsp;Practically speaking, I'd like to think it hard to see how the administration wins this one. </p>
<p> But that brings us to <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/23/a-new-writ-please-detain-me.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/23/a-new-writ-please-detain-me.aspx"> Eric's argument </a> , which I take to amount to this: Even if the federal habeas courts find jurisdiction to hear the cases, and Munaf and Omar ultimately win release from U.S. custody, they're still in Iraq. What's the point of this whole habeas exercise challenging the legality of their detention by the Americans if the Iraqis can just arrest them right away anyway?&nbsp;Several points. First, with respect to its implications for the legal question presented (Do U.S. courts have the power to hear the case?), so what?&nbsp;You're raising concerns mostly about the meaningfulness of a final remedy.&nbsp;Even if you're right that there's nothing good that can come for Munaf and Omar (and I'll argue in a sec it's at a minimum not at all clear), we've all seen the Supreme Court (in an exercise, one might suggest, of judicial restraint) regularly distinguish between answering questions about <i> whether </i> it has the power to decide, well before it gets to the question <i> what </i> it has the power to decide.&nbsp;So for the time being, I'd say that issue just isn't here.&nbsp; </p>
<p> Second, a key issue that is here is the preliminary injunction barring petitioners' transfer to Iraqi custody.&nbsp;That is, the question of where Munaf and Omar get to stay while the federal courts think about whether their several-year-long imprisonment by the United States without meaningful access to counsel, after (in Omar's case) severe beatings, etc., violates anything in the U.S. Constitution or laws.&nbsp;There, the outcome makes a potentially huge difference, as <a title="http://www.brennancenter.org/content/resource/omar_v_harvey/" href="http://www.brennancenter.org/content/resource/omar_v_harvey/"> much of the briefing </a> in the case discusses.&nbsp;Petitioners have vigorous claims that sending them to the Iraqis pending trial would violate U.S. treaty obligations not to transfer anyone anywhere where they have (here, not just substantial grounds, but every expectation) of being tortured.&nbsp;So even if it turns out the U.S. has done nothing wrong, and Munaf and Omar ultimately get turned over to the Iraqis, I'd buy a client's preference to put that off while the courts mull everything over. </p>
<p> Finally, and here I'd welcome some insight as it's been a while since I had fed courts, what is the scope of discretion a district court has in awarding a remedy in habeas?&nbsp;Release is surely in the realm.&nbsp;What about release in a country where there's a reasonable expectation petitioner won't be tortured? On its face, doesn't seem out of the question.&nbsp;But I'd be happy to know more.&nbsp; </p>Mon, 24 Mar 2008 16:26:00 GMThttp://www.slate.com/blogs/convictions/2008/03/24/munaf_and_omar_cont_d.htmlDeborah Pearlstein2008-03-24T16:26:00ZNews and PoliticsMunaf and Omar, Cont'd209080324004Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/24/munaf-and-omar-cont-d.aspxfalsefalsefalseMunaf and Omar, Cont'dMunaf and Omar, Cont'dMunaf and Omar Go to White Castlehttp://www.slate.com/blogs/convictions/2008/03/23/munaf_and_omar_go_to_white_castle.html
<p> Of all the striking things about the <a title="http://www.brennancenter.org/content/resource/omar_v_harvey/" href="http://www.brennancenter.org/content/resource/omar_v_harvey/"> consolidated cases </a> the Supreme Court is set to hear this Tuesday — presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts — the most striking to me has got to be how little anyone seems to care. </p>
<p> I should say I'm not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often ( <i> viz. </i> invariably) I'd get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): &quot;Why doesn't anyone seem to care about this?&quot; First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending).&nbsp;Congress has legislated now repeatedly on the topic.&nbsp;Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views.&nbsp;Academic and popular publications have proliferated on this like copies of <i> Thriller </i> c. 1983.&nbsp;And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years.&nbsp;Not, of course, that there's anything wrong with that.&nbsp; Second, I'm a lawyer, not a public opinion pollster. To the extent one hasn't encountered one's preferred level of rioting in the streets on a particular issue, I'd as soon defer on the &quot;why&quot; question to political scientists, clergy members, and marketing analysts (not necessarily in that order).&nbsp;Third, on what actual basis is anyone asserting there isn't &quot;anyone&quot; who cares?&nbsp;Their own polling?&nbsp;The issue's relative absence on the cover of <i> People </i> magazine? </p>
<p> Now where was I?&nbsp;Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again — I've heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don't get out enough.&nbsp;Whatever the case, I think <i> Geren v. Omar </i> and <i> Munaf v. Geren </i> have the potential to be at least as important as <i> Hamdi </i> , <i> Rasul </i> , and <i> Hamdan </i> — the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power.&nbsp; </p>
<p> While I'm hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I'd be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law? </p>Sun, 23 Mar 2008 22:16:00 GMThttp://www.slate.com/blogs/convictions/2008/03/23/munaf_and_omar_go_to_white_castle.htmlDeborah Pearlstein2008-03-23T22:16:00ZNews and PoliticsMunaf and Omar Go to White Castle209080323006Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/23/munaf-and-omar-go-to-white-castle.aspxfalsefalsefalseMunaf and Omar Go to White CastleMunaf and Omar Go to White CastleFundamentally Speakinghttp://www.slate.com/blogs/convictions/2008/03/21/fundamentally_speaking.html
<p> So here's where I think <a title=" http://balkin.blogspot.com/2008/03/strict-scrutiny-for-second-amendment.html " href="http://balkin.blogspot.com/2008/03/strict-scrutiny-for-second-amendment.html"> our arguments </a> are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between &quot;fundamental rights&quot; and &quot;everything in the Bill of Rights.&quot;&nbsp;(So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court's decision to apply strict scrutiny that in particular&nbsp;&quot;[m]arriage and procreation are <i> fundamental </i> to the very existence and survival of the race.&quot;)&nbsp; </p>
<p> I take you in recent posts to be arguing there's no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that &quot;fundamental rights&quot; include at a minimum everything in the Bill of Rights).&nbsp; Among other things, then, I'm stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass.&nbsp;Guess that falls into the Balkin given-a-chance-I'd-reverse bucket.&nbsp; </p>
<p> Second, I wasn't arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I'd hoped was made clear when <a title="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/19/what-s-fundamental-about-a-fundamental-right.aspx" href="http://www.slate.com/blogs/blogs/convictions/archive/2008/03/19/what-s-fundamental-about-a-fundamental-right.aspx"> I noted </a> , for example, &quot;the highly contextual availability of those rights (even the great First Amendment)...&quot;).&nbsp; I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is &quot;fundamental.&quot; Because you apparently think Amendments 1-8 or 9 are all &quot;fundamental,&quot; I can see why you wouldn't think that the necessary implication at all.&nbsp;Glad to have the record straight. </p>Fri, 21 Mar 2008 22:08:00 GMThttp://www.slate.com/blogs/convictions/2008/03/21/fundamentally_speaking.htmlDeborah Pearlstein2008-03-21T22:08:00ZNews and PoliticsFundamentally Speaking209080321015Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/21/fundamentally-speaking.aspxfalsefalsefalseFundamentally SpeakingFundamentally SpeakingAbout that &quot;Progressive Constitutional&quot; Thinghttp://www.slate.com/blogs/convictions/2008/03/21/about_that_progressive_constitutional_thing.html
<p> With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post- <i> Convictions </i> world), let me offer a few thoughts in response to <a title="http://balkin.blogspot.com/2008/03/why-jacob-howard-matters-message-to.html " href="http://balkin.blogspot.com/2008/03/why-jacob-howard-matters-message-to.html"> Jack's post </a> on the Second Amendment and more broadly on constitutional interpretation by &quot;progressive constitutionalists.&quot; </p>
<p> Jack's of course right that we should all know a lot more about the framers (and framing) of the 14 <sup> th </sup> Amendment. Count me in.&nbsp;I also couldn't agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War.&nbsp; Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack's account that one of the things the 14 <sup> th </sup> Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason.&nbsp; For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring. </p>
<p> But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with &quot;baggage&quot; (as Chief Justice Roberts would say) the Court's fundamental rights jurisprudence has been in the past ~150 years, my na&iuml;ve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of &quot;interpretive weight&quot; as against the statements of the no-doubt-far-more-enlightened views of Senator Howard.&nbsp; <i> Of course </i> it would've been better had <i> Slaughterhouse </i> been rightly (or even plausibly) decided, and we all hadn't wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states.&nbsp; But alas, that is the legal road we have traveled.&nbsp; It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause.&nbsp; It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court's understanding of what makes a right fundamental. </p>Fri, 21 Mar 2008 17:19:00 GMThttp://www.slate.com/blogs/convictions/2008/03/21/about_that_progressive_constitutional_thing.htmlDeborah Pearlstein2008-03-21T17:19:00ZNews and PoliticsAbout that &quot;Progressive Constitutional&quot; Thing209080321011Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/21/about-that-progressive-constitutional-thing.aspxfalsefalsefalseAbout that "Progressive Constitutional" ThingAbout that "Progressive Constitutional" ThingPassports, Privacy &amp; Politicshttp://www.slate.com/blogs/convictions/2008/03/21/passports_privacy_politics.html
<p> CNN says the blogosphere is abuzz with news of the <a href="http://www.cnn.com/2008/POLITICS/03/20/obama.passport/index.html"> Obama passport story </a> , so I feel somehow obliged to make it true.&nbsp; Trouble is, I'd always figured most lawyers should have way more questions than answers at such an early point in such a story.&nbsp; So what could we possibly have to contribute?&nbsp; </p>
<p> &nbsp;For what it's worth, here's what I got.&nbsp; According to the U.S. State Department website, the <a href="http://travel.state.gov/passport/"> Passport Services division </a> maintains U.S. passport records for passports issued from 1925 to the present. &quot;These records normally consist of applications for United States passports and supporting evidence of United States citizenship, and are protected by the <a href="http://www.usdoj.gov/04foia/privstat.htm"> Privacy Act of 1974 </a> . Passport records do not include evidence of travel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after it is issue[d].&quot;&nbsp; On the law, violation of the relevant Privacy Act provisions (like willful disclosure of protected agency records) can subject the violator (provided he/she's an &quot;officer or employee of an agency&quot;) to criminal fines up to $5,000, or a civil action by the individual.&nbsp; So assuming contractors count as agency employees within the meaning of the statute (and I wonder whether there's case law here), I could imagine finding statutory violations under these circumstances.&nbsp; And boy does it look bad.&nbsp; </p>
<p> The thing is, while I'm certainly pleased such personal records are protected from disclosure, and am appalled at the thought of politically motivated snooping, I don't get what could be of such great interest in a passport file to warrant the trouble?&nbsp; It seems hard to picture someone successfully using Obama's Social Security number in any kind of identity theft scheme.&nbsp; Does someone seriously think he might be lying about his citizenship?&nbsp; Or does &quot;imprudent [read cat-killing] curiosity&quot; by poorly trained contractors ring true?&nbsp; </p>
<p> Anyone care to buzz back? </p>Fri, 21 Mar 2008 06:01:00 GMThttp://www.slate.com/blogs/convictions/2008/03/21/passports_privacy_politics.htmlDeborah Pearlstein2008-03-21T06:01:00ZNews and PoliticsPassports, Privacy &amp; Politics209080321001Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/21/passports-privacy-politics.aspxfalsefalsefalsePassports, Privacy &amp; PoliticsPassports, Privacy &amp; PoliticsWhat's Fundamental About a Fundamental Right?http://www.slate.com/blogs/convictions/2008/03/19/what_s_fundamental_about_a_fundamental_right.html
<p> [Deborah Pearlstein] Can't wait to read the Obama posts, but first thanks to Jack for the <a title="http://balkin.blogspot.com/2008/03/is-right-to-keep-and-bear-arms.html " href="http://balkin.blogspot.com/2008/03/is-right-to-keep-and-bear-arms.html"> interesting post </a> about the nature of constitutional rights, fundamental and otherwise. Nonetheless, I confess it didn't quite overcome my lingering sense of puzzlement about where the Second Amendment fits in the constitutional hierarchy.&nbsp; To start I'll need some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second.&nbsp; But I've always been inclined to support a relatively eclectic methodology of constitutional interpretation (i.e. start with the text and if that doesn't settle everything, at least consider other sources that might plausibly shed light) so I won't quibble much in a non-litigation setting.&nbsp; </p>
<p> There's also, however, the problem that the Supreme Court seems rather early and often to have disagreed with the Senator's take on what &quot;privileges and immunities&quot; under the Fourteenth Amendment includes. Now I'm hardly a supporter of the <i> Slaughterhouse </i> view of matters, but surely (harking back to our living constitution dilemma) such precedent counts for something, even in a post-Roberts world.&nbsp; </p>
<p> And then there's the logic puzzle.&nbsp; As I read Howard, he says whatever &quot;privileges and immunities&quot; means, it includes &quot;fundamental rights&quot; (per <i> Corfield </i> ) <i> plus </i> the first 8 amendments of the Constitution (i.e. &quot;to these should be added the personal rights guaranteed...&quot;).&nbsp; While he later suggests it's all &quot;fundamental&quot; in some sense, his initial cut could at least be read as distinguishing all the good stuff we know about in the Bill of Rights from other rights, deemed fundamental, not necessarily enumerated in the first 8 tries.&nbsp; His views as in support of living constitutionalism I'd buy.&nbsp; But that Howard sheds any light on the jurisprudential distinction between rights &quot;fundamental&quot; and not, I don't quite see it.&nbsp; </p>
<p> Which brings us back to the original question - how do we know a fundamental right when we see it?&nbsp; Or, how do we know the Second Amendment fits the bill?&nbsp; Inclusion in the Bill of Rights per se, and perhaps strangely enough, hasn't actually seemed sufficient.&nbsp; Indeed, given the highly contextual availability of those rights (even the great First Amendment), someone new to Supreme Court case law might reasonably conclude that a right is more likely to be found fundamental if it's only claim to textual fame is the &quot;substantive due process&quot; clause (so to speak).&nbsp; The grand jury is apparently not implicit in the concept of ordered liberty; bodily integrity is.&nbsp; Now it could be that I've just been making this more complicated than necessary, and calling a right &quot;fundamental&quot; is just a way of getting it treated like a right we would've included in the Bill of Rights but for those pesky word limits.&nbsp; I'd be delighted for clarification.&nbsp; For now, though, I guess count me as unconvinced of the fundamental status of the right as Mr. Heller sees it. </p>Thu, 20 Mar 2008 00:05:00 GMThttp://www.slate.com/blogs/convictions/2008/03/19/what_s_fundamental_about_a_fundamental_right.htmlDeborah Pearlstein2008-03-20T00:05:00ZNews and PoliticsWhat's Fundamental About a Fundamental Right?209080319019Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/19/what-s-fundamental-about-a-fundamental-right.aspxfalsefalsefalseWhat's Fundamental About a Fundamental Right?What's Fundamental About a Fundamental Right?Fundamental Rights, Living or Elsehttp://www.slate.com/blogs/convictions/2008/03/19/fundamental_rights_living_or_else.html
<p> [Deborah Pearlstein] Reading <a href="http://www.slate.com/id/2186853/" title="http://www.slate.com/id/2186853/"> Dahlia's account </a> of yesterday's oral arguments in the big gun case reminds me why it was my co-clerks and I would read coverage by Linda and Dahlia the morning after arguments at the Court and call it a day (as far as non-work reading went).&nbsp; They pretty much nailed it every time.&nbsp; But as much as I'd like to spend more time wallowing in the delight of unpacking Justice Kennedy's Freudian obsession with Grizzlies (Stephen Colbert - are you listening?), it's this &quot;fundamental right&quot; to gun ownership that has me more troubled.&nbsp; </p>
<p> It's not that I necessarily disagree with the many distinguished progressive scholars ( <a href="http://balkin.blogspot.com/2008/03/liberals-make-fun-of-living.html" title="http://balkin.blogspot.com/2008/03/liberals-make-fun-of-living.html"> Jack Balkin </a> , <a href="http://www.scotusblog.com/wp/commentary-and-analysis/the-view-from-cambridge-professor-tribe-on-the-guns-case/" title="http://www.scotusblog.com/wp/commentary-and-analysis/the-view-from-cambridge-professor-tribe-on-the-guns-case/"> Larry Tribe </a> ) who think there may actually be an individual right lurking in the obscure text of U.S. Const, Amend 2.&nbsp; There are, as they say, arguments on both sides.&nbsp; It's this notion that whatever individual right the amendment protects it must be &quot;fundamental&quot; in nature.&nbsp; When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were &quot;fundamental&quot; and those that were, well, not. Some rights were &quot;principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental&quot; and &quot;implicit in the concept of ordered liberty.&quot; <i> Palko v. Connecticut </i> .&nbsp; Other rights were &quot;new.&quot; <i> Teague v. Lane </i> .&nbsp; The interest of parents in their relationship with their children (requiring the waiver of court fees for the indigent to challenge termination of parental rights): fundamental.&nbsp; The interest of welfare recipients in the rational distribution of benefits (requiring the same fee waiver): not. &nbsp;(Cf. also the Court's repeated recognition that the violation of some trial rights in the Bill of Rights is presumptively prejudicial, while the violation of others is harmless error.)&nbsp; Most important for present purposes, the regulation of fundamental rights got strict scrutiny.&nbsp; Non-fundamental rights, not so much. </p>
<p> Setting aside for the moment Chief Justice Roberts' allergy to having his kids' orthodontia subsidized by further doctrinal debates about the appropriate level of scrutiny to which government regulation of rights should be subject, whence on earth comes this notion that about-to-be-newly-discovered gun rights are fundamental?&nbsp; Heller's brief pretty much just asserts that they are.&nbsp; The District's brief on the merits concludes that they aren't largely in footnotes.&nbsp; And even if CJ Roberts continues along his Clarence Thomas-esque &quot;given-the-chance-I'd-overrule-everything-and-start-over&quot; path, it strikes me as the far greater interpretive leap to find gun ownership &quot;implicit in the concept of ordered liberty,&quot; than to conclude it's something less than that and let courts have a go at applying some sort of reasonableness/rationality review.&nbsp; Even living constitutionalists have their standards, no? </p>Wed, 19 Mar 2008 16:03:00 GMThttp://www.slate.com/blogs/convictions/2008/03/19/fundamental_rights_living_or_else.htmlDeborah Pearlstein2008-03-19T16:03:00ZNews and PoliticsFundamental Rights, Living or Else209080319007Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/19/fundamental-rights-living-or-else.aspxfalsefalsefalseFundamental Rights, Living or ElseFundamental Rights, Living or ElseSo, Who Is Minding the Executive's Store?http://www.slate.com/blogs/convictions/2008/03/17/so_who_is_minding_the_executive_s_store.html
<p> On the David/Emily/Dahlia/Orin chat about how many are minding the unitary executive's store in selling the </p>
<i> Heller </i>
<p> case to the court, I agree with Orin's speculation that there are certainly some (conservative) base politics at work here in the VP's amicus brief.&nbsp;But the visible inelegance with which this particular operation has been carried out smacks more of a lame-duck executive than a binary (much less unitary) one.&nbsp;Could just be me, but I've had the increasing impression that there's no one in particular minding the executive's store these days.&nbsp;Rove and other first-order appointees have by now left in large numbers, the president is busy tap dancing about the economy (and apparently </p>
<a title="http://www.kansascity.com/445/story/518419.html" href="http://www.kansascity.com/445/story/518419.html"> other matters </a>
<p> as well), and it's not yet clear that Judge Mukasey has anyone's attention internally, given the relative silence in response to his announced </p>
<a title="http://abcnews.go.com/TheLaw/DOJ/story?id=4453816&amp;page=1" href="http://abcnews.go.com/TheLaw/DOJ/story?id=4453816&amp;page=1"> opposition </a>
<p> to the death penalty for the handful of Guantanamo detainees actually accused of involvement in the 9/11 attacks.&nbsp; I hasten to add that my comments here are, in keeping with my worst fears of the blogosphere, without basis in any actual information about any of the relevant internal decision-making. I'd thus gladly defer to Marty, Dawn, Walter, or any of those who've engaged DoJ/SG processes first hand.&nbsp;Setting aside our unusual vice president's office these days, who </p>
<em> should </em>
<p> be engaged in making such calls? </p>Mon, 17 Mar 2008 22:08:00 GMThttp://www.slate.com/blogs/convictions/2008/03/17/so_who_is_minding_the_executive_s_store.htmlDeborah Pearlstein2008-03-17T22:08:00ZNews and PoliticsSo, Who Is Minding the Executive's Store?209080317012Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/17/so-who-is-minding-the-executive-s-store.aspxfalsefalsefalseSo, Who Is Minding the Executive's Store?So, Who Is Minding the Executive's Store?The New Bloghttp://www.slate.com/blogs/convictions/2008/03/14/the_new_blog.html
<p> With many thanks to Phil Carter for putting together <strong> <em> Slate </em> </strong> 's new contribution to the legal blogosphere, I guess I'll begin by taking Phil up on his offline suggestion, <i> viz. </i> <i> you might want to begin by saying something about who you are and why you're here </i> . Roger that, Phil. </p>
<p> So first, it must be said, I am a late-comer and relative neophyte to the blog genre. I've tried once or twice — OK twice — but only at others' instigation. There was this, at the invitation of <i> Opinio Juris </i> and in response to State Department legal adviser John Bellinger's <a title="http://www.opiniojuris.org/posts/chain_1169503291.shtml " href="http://www.opiniojuris.org/posts/chain_1169503291.shtml"> blog </a> on all matters international law, human rights, and counterterror. (You'll have to scroll down.)&nbsp;And earlier, there were these first <a title="http://www.humanrightsfirst.org/us_law/detainees/military_commission_diary.htm#day5" href="http://www.humanrightsfirst.org/us_law/detainees/military_commission_diary.htm#day5"> entries from Guantanamo Bay </a> in late August 2004 (again, scroll down) at the wise insistence of Human Rights First's then-communications director, Jill Savitt.&nbsp;To be fair, I didn't even really &quot;write&quot; much of this myself; the posts were phoned in to Jill late-night from the semiprivacy of my own room on the leeward (read mostly empty) side of the U.S. naval base there. It had taken us close to two years to convince DoD to let us send some human rights monitors down to Gitmo to watch the opening of military commission proceedings. We weren't sure at that point if they'd let us have e-mail access from the base (or if we wanted to take advantage of it if they did).&nbsp;So we did as good human rights researchers do and took our own satellite phones. If nothing else, we'd call in news of all motions filed when we stopped in for Egg McMuffins en route to the &quot;courthouse.&quot;&nbsp;In any case, I'll ask to beg a month or two of indulgence as I get used to the blog-it-yourself idea here.&nbsp; </p>
<p> Point 2, then, must be some explanation of why I'd be blogging with John Bellinger and what I was doing eating Egg McMuffins at Gitmo in August 2004.&nbsp; (A further digression to say if you think those two items are at all of interest, you either don't spend enough time reading the rest of the news on <i> <strong> Slate </strong> </i> and/or will find my future posts of potential interest.)&nbsp;The immediate answer is that I spent from 2003-2006 (and a little of 2007) setting up and directing the Law and Security program at Human Rights First, a New York-based NGO formerly known as the Lawyers Committee for Human Rights that thought (and I believe still thinks) that parts of the United States' counterterrorism response to 9/11 were concerning enough to start a domestically focused program at an organization whose major work to date had been largely about protecting international refugees, figuring out how to do justice for the victims of crimes against humanity, and supporting human rights defenders interested in, say, finding disappeared relatives in places like, say, Guatemala. Mine was a wonderful and horrible job. </p>
<p> I didn't start out as a human rights lawyer. My first job after college was, of all things, writing letters, messages, and eventually speeches for then-President Clinton.&nbsp;No, I didn't work in the West Wing. But I did have a blue badge.&nbsp;No idea if that still means anything in the post-'90s White House.&nbsp;From there it was off to law school, which I loved, and soon thereafter to clerking for Justice John Paul Stevens, which I loved even more.&nbsp;And though I thought I wanted to go straight to academia to teach constitutional law, I also thought it might be wise to learn anything about how to practice law first.&nbsp;So to a few mostly happy years at a law firm that let me do a marvelous amount of pro bono work and even some interesting paid cases involving some actual constitutional law as well.&nbsp;And just as I was starting to think about when to take the academic plunge, 9/11 happened.&nbsp;And there followed, it seemed to me, some of the most important constitutional events I was likely to see in my lifetime.&nbsp;And so it was I came to meet Phil, one of the many and inspiring members of the military I came to know while in human rights practice.&nbsp;And so it is that several years later than I'd intended, I find myself tip-toeing back to academia, at the moment under the very generous auspices of the Law and Public Affairs program at the Woodrow Wilson School at Princeton University. </p>
<p> That's got to be plenty to start.&nbsp;Ah, but for one other feature of my bio that I should forewarn may draw my blog focus in the appropriate season (and on rare occasion) away from government power and individual rights and toward, my apologies, what legal matters may arise in a certain professional sport. The Indianapolis Colts and I moved to Indiana the same year.&nbsp;Unbeknownst to the team, we have been attached ever since. </p>
<p> Biases I hope fully revealed, I look forward to the blogging adventure. </p>Fri, 14 Mar 2008 16:32:00 GMThttp://www.slate.com/blogs/convictions/2008/03/14/the_new_blog.htmlDeborah Pearlstein2008-03-14T16:32:00ZNews and PoliticsThe New Blog209080314002Deborah PearlsteinConvictionsConvictionshttp://www.slate.com/blogs/blogs/convictions/archive/2008/03/14/the-new-blog.aspxfalsefalsefalseThe New BlogThe New Blog